Citation Nr: 22014018 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 17-38 372 DATE: March 11, 2022 ORDER A compensable rating for bilateral tinea pedis to include dermatophytosis/onychomycosis of the great toes is denied. REMANDED Service connection for obstructive sleep apnea (OSA) is remanded. FINDING OF FACT The Veteran's bilateral tinea pedis affects less than 5 percent of his body area and is treated through no more than topical therapy. CONCLUSION OF LAW The criteria for a compensable rating for bilateral tinea pedis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7813-7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran honorably served in the Army from October 1980 to February 2003. These matters are on appeal before the Board of Veterans' Appeals (Board) from June 2015 and August 2017 rating decisions. The Veteran appeared before the undersigned Veterans Law Judge at a virtual hearing in October 2021. A transcript of those proceedings has been associated with the record. 1. A compensable rating for bilateral tinea pedis with dermatophytosis/onychomycosis of the great toes Legal Criteria The Veteran's bilateral tinea pedis is rated under Diagnostic Code 7813-7806, for tinea pedis and the General Rating Formula for the Skin. 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 was 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 (DCs 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, DC 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 (DCs 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. Factual Background & Analysis The Veteran underwent a VA dermatological examination in June 2017. He was diagnosed with dermatophytosis with onychomycosis of the great toenail. Treatment of this fungal infection was noted to require constant or near-constant use of Thymol 4% which is an antibacterial oil solution and Clotrimazole 1% antifungal topical medication. Less than 5% of total body area and no exposed body area were noted to be affected by this skin disability. During the October 2021 hearing the Veteran stated that his bilateral tinea pedis had "cleared up" and that he has not had a flare-up in approximately a year and a half. Considering the above, the Board first finds that the weight of the competent medical evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018, regulations because the Veteran's bilateral tinea pedis has not at any point been noted to affect 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. While the June 2017 examiner failed to note whether the Veteran's prescribe Clotrimazole cream is considered a corticosteroid, this medication still constitutes a topical treatment. In Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court of Appeals for Veterans Claims (Court) held that the Board must make a factual determination regarding whether a topical treatment for a skin disorder constitutes systemic therapy. Here, the evidence of record does not support a finding that the Veteran's topical treatment for bilateral tinea pedis affects his entire body. Clotrimazole is an over-the-counter medication that is only applied to areas affected by fungal rashes. The Board finds that this isolated use of topical corticosteroid cream to his feet does not rise to the level of systemic therapy as it does not impact the entire body or a majority of the skin. As such, the Board finds that the Veteran's use of Clotrimazole does not constitute systemic therapy under the criteria in effect prior to August 13, 2018. The Board also finds that the weight of the competent medical evidence is against the assignment of a compensable evaluation under the August 13, 2018, regulations because the Veteran's bilateral tinea pedis does not more nearly approximate 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 required for a total duration of less than 6 weeks over the past 12-month period. As noted previously, the Veteran's use of Clotrimazole only constitutes a topical treatment, and therefore although he had been noted to use this treatment on a constant or near-constant basis in the past, it is not considered a systemic treatment under the rating criteria. 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 evidence is not in approximate balance but is persuasively weight against the Veteran's claim for a compensable rating for his bilateral tinea pedis. 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, Diagnostic Code 7813-7806. REASONS FOR REMAND 2. Service connection for OSA The Veteran's VAMC treatment records reflect that he has been diagnosed with OSA. He stated during his October 2021 hearing testimony that he began experiencing symptoms of OSA such as loud snoring during his active-duty service and he subsequently submitted lay statements to substantiate the report of in-service snoring. The Veteran also raised the contention that his service-connected musculoskeletal disabilities and/or PTSD have rendered him unable to remain active which has caused weight gain. The Veteran must be afforded a VA examination in connection with this claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, medical opinions should be obtained addressing direct service connection and secondary service connection with obesity potentially serving as an intermediary between service-connected disabilities and the claimed disability of OSA. See VAOPGCPREC 1-2017. The matters are REMANDED for the following action: 1. Obtain any outstanding VA or private treatment records. 2. Please schedule the Veteran for an examination with an appropriate clinician to assess the nature of his OSA. After completion of all necessary diagnostic testing and studies, the clinician must opine as to the following: (a.) Is the Veteran's OSA directly related to his active service, to include reports of snoring and sleep disturbances while on active duty? Why or why not? (b.) Whether any of the Veteran's service-connected disabilities (to include his musculoskeletal disabilities and PTSD) caused the Veteran to become obese or aggravated (worsened) his obesity, either individually or by the total combined effect of two or more service-connected disabilities (i.e., due to a lack of mobility or inability to exercise)? (c.) If so, whether the obesity was a substantial factor in causing OSA? (d.) Would the OSA not have occurred but for the obesity? (Continued on the next page) The examiner is informed that a positive opinion indicating a nexus does not require certainty. Rather, if the weight of the evidence is in approximate balance for and against a nexus, the examiner should make a determination favorable to the Veteran. All requested opinions must be supported with a rationale based on generally accepted medical principles and the examiner's medical training and expertise. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.