Citation Nr: 22016486 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 08-30 058A DATE: March 22, 2022 ORDER From August 21, 2007 to February 1, 2016, a 10 percent rating for tinea pedis and tinea unguium is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT From August 21, 2007 to February 1, 2016, the Veteran's service-connected tinea pedis and tinea unguium involved at least five percent but less than 20 percent of the entire body; systemic therapy such as corticosteroids or other immunosuppressive drugs were not required for a total duration of six weeks or more during any 12 month period. CONCLUSION OF LAW The criteria for a 10 percent rating, but no higher, for tinea pedis and tinea unguium, from August 21, 2007 to February 1, 2016, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Diagnostic Codes (DCs) 7806, 7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training (ACDUTRA) from October 1980 to March 1981 and on active duty from November 1990 to May 1991 (including deployment to Southwest Asia in support of Operations Desert Shield/Desert Storm), from February 1999 to October 1999, and from March 2003 to March 2004. He also served on ACDUTRA and inactive duty training (INACDUTRA) with the Army Reserve and National Guard. The case is on appeal from October 2007 rating decision. In March 2011, the Veteran testified at a Board hearing. The case was most recently at the Board in March 2021. At that time, the Board remanded the case for additional development. The Board notes that a January 2022 rating decision code sheet reflects the rating for tinea pedis and tinea unguium was closed out for the period May 1, 1991 to July 5, 2013, and that a 30 percent rating was assigned from February 1, 2016, thereby omitting the rating period from July 5, 2013 to February 1, 2016. The RO should ensure that the rating decision implementing the Board's grant of a higher rating for tinea pedis and tinea unguium prior to February 1, 2016 in the decision below reflects the complete rating period for tinea pedis and tinea unguium. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A compensable rating for tinea pedis and tinea unguium prior to February 1, 2016. I. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. VA amended the criteria for rating skin disabilities effective from August 13, 2018. 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). Prior to August 13, 2018, DC 7813, instructed to rate as disfigurement of the face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), or dermatitis (7806) depending on the predominant disability. 38 C.F.R. § 4.118, DC 7813. Prior to August 13, 2018, under DC 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 (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7806. II. Analysis The Veteran seeks a compensable rating for tinea pedis and tinea unguium. He maintains that his symptoms are more severe than reflected in the rating assigned prior to February 1, 2016. Pursuant to the March 2021 Board remand, the Veteran was afforded a VA examination in September 2021. Although the examiner reported that service-connected tinea pedis and tinea unguium were not present on examination, some conditions, such as skin disorders, by their inherent nature, wax and wane, and, accordingly, are sometimes active and other times not. Ardison v. Brown, 6 Vet. App. 405, 408 (1994). In addition, the total body area due to all of the Veteran's skin conditions/rashes was noted to usually affect 5 to 20 percent of total body area, and although the specific percentage attributable to tinea pedis and tinea unguium, when present, was not specifically reported, the examiner noted an increase in the total body area affected during flare-ups of the service-connected skin conditions. The Board notes that the Veteran's use of topical medication for tinea pedis and tinea unguium does not rise to the level of systemic therapy. See Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017). Nonetheless, in view of the September 2021 VA examination, together with the Veteran's assertions and the evidence, to include the September 2020 Disability Benefits Questionnaire (DBQ) noting treatment of tinea pedis since 1991, and a July 2013 record noting increased symptoms due to heat and perspiration, and the August 2006 VA examination noting mild onychomycosis of the 5th toe and right 1st 2nd and 5th toes, the Board finds that the Veteran's symptoms associated with tinea pedis and tinea unguium more closely approximate the criteria for a 10 percent rating, prior to February 1, 2016, particularly when resolving doubt in the Veteran's favor. As reasonable doubt was already resolved in the Veteran's favor in finding the evidence supports a 10 percent rating prior to February 1, 2016, an ever higher rating is clearly not warranted. In addition, the Board also considered whether an earlier effective date for the increased rating based on the one year look back period is warranted. The Veteran first filed a claim for increase on August 21, 2007, which begins the period of appellate review before the Board (plus the consideration of the one-year look back period prior to the filing of that claim). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). In this case, the evidence does not reveal a factually ascertainable date upon which an increase in severity of the condition occurred within the one year look back period prior to the filing of the claim. Therefore, the effective date of the increased 10 percent rating is assigned based on the date that the Veteran's claim for an increased rating was received. In sum, the Board finds that the evidence supports a 10 percent rating, but not higher, for tinea pedis and tinea unguium prior to February 1, 2016. Thus, a 10 percent rating for tinea pedis and tinea unguium form August 21, 2007 to February 1, 2016 is warranted. Although the Board is remanding another issue, remand is not necessary for this issue as there is no reasonable possibility that further assistance would substantiate a rating higher than 10 percent prior to February 1, 2016. See 38C.F.R. § 3.159(d). REASONS FOR REMAND A rating higher than 30 percent for tinea pedis and tinea unguium from February 1, 2016. VA treatment records associated with the clams file subsequent to the issuance of the most recent September 2021 supplemental statement of the case (SSOC) reflect a new prescription for a topical steroid for a skin condition/rash involving the lower extremities in October 2021. See January 2022 CAPRI records. As there is an indication that the condition is worse, remand for a VA examination is warranted. Snuffer v. Gober, 10 Vet. App. 400 (1997). As noted above, the RO should ensure that the record accurately reflects the ratings assigned for tinea pedis and tinea unguium since May 10, 1991. In view of the remand, updated VA treatment records should be associated with the file. The matter is REMANDED for the following action: 1. Obtain VA treatment records since September 2021. 2. Schedule the Veteran for an examination (or telehealth interview, records request, etc. if an in-person examination is not feasible) by an appropriate clinician to assess the severity of the service-connected tinea pedis and tinea unguium. If there are flare-ups, but if the examination is not conducted during a flare-up, the severity during flare-ups should be estimated. Rationale for all opinions expressed should be provided. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Taylor 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.