Citation Nr: 21042206 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-08 469 DATE: July 12, 2021 ORDER Entitlement to a higher initial 10 percent rating, but no higher, from March 4, 2013, for dermatophytosis nails is granted, subject to the laws and regulations controlling the award of monetary benefits. FINDING OF FACT Since the March 4, 2013 effective date of service connection, the Veteran's dermatophytosis nails, or characteristic lesions thereof, has affected no more than 5 to 20 percent of the entire body; but has not affected more than 20 to 40 percent of the entire body or more than 20 to 40 percent of exposed areas; and has not required systemic therapy. CONCLUSION OF LAW The criteria for a higher initial 10 percent rating, but no higher, from March 4, 2013, for dermatophytosis nails have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.118, Diagnostic Code (DC) 7813-7806 (in effect prior to and since August 13, 2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2004 to February 2010. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision which, among other things, awarded service connection for dermatophytosis nails and assigned an initial noncompensable disability rating, from March 4, 2013. In April 2015 the Veteran filed a notice of disagreement (NOD) and disagreed with the initial rating assigned as to his dermatophytosis nails. In January 2017, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC) and in February 2017 the Veteran filed a substantive appeal (via VA Form 9). In January 2019, the Board remanded this matter for further evidentiary development, specifically, to afford the Veteran a VA examination to determine the current severity of his service-connected dermatophytosis nails. For the reasons stated in the discussion below, the Veteran was afforded an adequate VA examination in October 2019 and the AOJ substantially complied with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As a final preliminary matter, the Board points out that the Veteran had also perfected an appeal with regard to the issues of entitlement to service connection for sleep apnea and hypertension, and the Board remanded these issues in January 2019 for further development. A Decision Review Officer (DRO) awarded service connection for obstructive sleep apnea and hypertension by way of a June 2020 decision, and thereby resolved the appeal as to these issues. Dermatophytosis nails Disability ratings are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. § Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155. Where service connection has been granted and the assignment of an initial rating is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). 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. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran's dermatophytosis nails is rated noncompensable under 38 C.F.R. § 4.118, DCs 7813-7806. 38 C.F.R. § 4.118. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § § 4.27. DC 7813 pertains to dermatophytosis and is rated by analogy to dermatitis and eczema under DC 7806. The Board notes that the Schedule for Rating Skin Disabilities was amended during the pendency of the claim. See Schedule for Rating Disabilities; Skin, 83 Fed. Reg. 32592 (July 13, 2018). The new regulations apply to claims filed on or after August 13, 2018 and claims pending on August 13, 2018, if the new regulation is more favorable for the Veteran. 38 C.F.R. § 4.118. Although the Veteran's application was received by VA before the August 2018 effective date for the revised skin regulations, the Board will consider its application to the Veteran's claim. Under the pre-amended version of DC 7806, a 10 percent rating requires that 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 be 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 requires that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas is affected; or systemic therapy such as corticosteroids or other immunosuppressive drugs is required for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent rating requires that more than 40 percent of the entire body or more than percent of exposed areas is affected; or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period. 38 C.F.R. § 4.118, DC 7806. Under the revised version of DC 7806, a disability under this diagnostic code is rated under the General Rating Formula for the Skin (General Rating Formula). Under the General Rating Formula, a 10 percent rating is warranted where at least one of the following is present: 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 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 6 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. Because "systemic therapy," which is the type of therapy that creates compensability, is connected to the phrase "corticosteroids or other immunosuppressive drugs" by "such as," those drug types do not constitute an exhaustive list of all compensable systemic therapies, but rather serve as examples of the kind and degrees of treatments used to justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Consequently, the types of systemic treatment that are compensable under DC 7806 are not limited to "corticosteroids or other immunosuppressive drugs." Compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs. Warren v. McDonald, 28 Vet. App. 194 (2016). 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 (Court) 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 United States Court of Appeals for the Federal Circuit (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." Thus, 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. In Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court held there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. Under the revised criteria, systemic therapy is defined as 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. 38 C.F.R. § 4.118(a). In this case, a February 2014 VA examiner diagnosed the Veteran with dermatophytosis. The Veteran had not been treated with oral or topical medications in the past 12 months for his skin condition. The VA examiner noted that infections of the skin affected less than 5 percent of the total body area. The VA examiner noted that the Veteran's skin condition may have some negative impact on his work performance during a flare-up. An October 2014 VA physician noted that the Veteran's left great toenail was thick, discolored, and had subungual debris. A callus was present on the dorsal aspect of the 5th toe on the left foot. On his May 2017 VA Form 9, the Veteran stated that his condition had spread to other nails and that he was given a topical fungal fighting cream which was ineffective. The Veteran stated that the fungal infection had spread to other regions of the body, to include his waist area, groin area, and buttock. At an October 2019 VA examination, the Veteran reported that his toenail infection began in 2007 and he had been prescribed topical anti-fungal creams which did not work. The Veteran was never offered any oral medications. The VA examiner noted that the Veteran's left great toe showed yellowish discoloration and his right small toe showed thickened brownish toenail discolorations. Notably, the VA examiner noted that the Veteran's dermatophytosis caused characteristic lesions involving at least 5 percent, but less than 20 percent, of the total body area and less than 5 percent of the exposed area. Because the October 2019 VA examiner noted that there were characteristic lesions covering at least 5 percent, but less than 20 percent of the Veteran's total body, a higher initial rating is warranted. Although the February 2014 VA examiner noted that infections of the skin affected less than 5 percent of the Veteran's total body, the Board finds that the Veteran's symptoms have more nearly approximated the rating criteria for a higher initial 10 percent rating since the March 4, 2013 effective date of service connection. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to all aspects of a claim). Accordingly, an initial 10 percent rating, from March 4, 2013, is warranted. See 38 C.F.R. § 4.118, DC 7806. The Board also finds that an initial rating greater than 10 percent is not warranted at any time during the claim period. Specifically, none of the available VA examination reports or medical treatment notes indicate that the Veteran's dermatophytosis covered more than 20 percent to 40 percent of his entire body or 20 percent to 40 percent of exposed areas. Although the Veteran stated that he was given topical fungal fighting cream, the Veteran reported that this treatment did not work and it is unclear whether he treated his dermatophytosis for a total duration of six weeks or more, but not constantly, over a 12-month period. Moreover, treatment pertaining to the Veteran's dermatophytosis did not affect the body as a whole and, although not exhaustive, the Veteran was not prescribed corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs. Therefore, an initial rating higher than 10 percent for dermatophytosis nails is not warranted at any time since the effective date of service connection. As the preponderance of the evidence is against the claim for an initial rating greater than 10 percent, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. (CONTINUED ON NEXT PAGE) The Board has considered the Veteran's rating claim and decided entitlement based on the evidence. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.