Citation Nr: 22017009 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 17-50 449 DATE: March 23, 2022 ORDER Entitlement to a 10 percent rating for bilateral tinea pedis is granted. Entitlement to service connection for a psychiatric disorder, to include schizophrenia is denied. FINDINGS OF FACT 1. During the entire appeal period, the Veteran's dermatophytosis, to include tinea pedis, of the bilateral feet affected less than 5 percent of the entire body; constant or near constant use of topical medication was generally required, but there was no intermittent use of systematic therapy or immunosuppressive drugs required. 2. The Veteran's schizophrenia clearly and unmistakably preexisted his active-duty service clearly and unmistakably was not aggravated by such service . CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent rating for bilateral tinea pedis have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7813-7806. 2. The criteria for service connection for a psychiatric disorder, to include schizophrenia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1975 to December 1977. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Agency of Original Jurisdiction (AOJ). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in February 2021. The transcript is of record. The appeal was remanded in June 2021 to obtain an adequate medical opinion as to the nature and etiology of the Veteran's psychiatric disorder as well as a medical examination to assess the current severity of the Veteran's bilateral tinea pedis. A new medical opinion as to the Veteran's psychiatric disorder was associated with the file in November 2021. The Board finds that the medical opinion is supported by sufficient rationale. The Veteran was afforded a new VA examination for skin diseases in August 2021. Thus, the Board determines that there has been substantial compliance with the June 2021 remand directives and further remand is not required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that remand not required where there was substantial compliance with remand directives). 1. Entitlement to a compensable rating for bilateral tinea pedis Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran's tinea pedis of the bilateral feet is currently evaluated as noncompensable pursuant to 38 C.F.R. § 4.118, Diagnostic Codes 7813-7806. See 38 C.F.R. § 4.20. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2019). The Board finds that a 10 percent rating, but no higher, is warranted for the entire appeal period. Diagnostic Code 7813 requires dermatophytosis (ringworm of the body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium; of inguinal area, tinea cruris) to be rated as disfigurement of the head, face, or neck, scars, or dermatitis, depending on the predominant disability. As such, the Veteran's service-connected tinea pedis is rated under Diagnostic Code 7806. See 38 C.F.R. § 4.20 (2019). Diagnostic Code 7806 provides a noncompensable disability evaluation for dermatitis or eczema of 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-month period. A 10 percent disability evaluation is assigned for dermatitis or eczema of at least 5 percent of the entire body, but less than 20 percent of the entire body, or at least 5 percent, but less than 20 percent of the exposed affected areas, or intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the prior 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806. For the next higher 30 percent disability evaluation, there must be dermatitis or eczema over 20 to 40 percent of the body or 20 to 40 percent of the 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 prior 12-month period. For the next higher 60 percent disability evaluation, there must be dermatitis or eczema over more than 40 percent of the entire body, or more than 40 percent of the exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs for the past 12-month period. Id. Following a review of the evidence, the Board finds that the Veteran's dermatophytosis, to include tinea pedis of the bilateral feet more nearly approximates the criteria for a 10 percent disability evaluation under Diagnostic Code 7806 for the entire rating period on appeal. The evidence shows that the Veteran does not have dermatophytosis, to include tinea pedis, of the bilateral feet over at least 5 percent of his entire body. Indeed, the medical evidence, including the June 2016 and August 2021 VA examination reports, indicate that the Veteran has dermatophytosis over less than 5 percent of his entire body. However, the Board acknowledges that the Veteran reports that he experiences itching, scaling, and flaking of the feet which he treats with topical medications on a regular basis. See February 2021 hearing testimony p. 5. While this treatment is not systemic therapy as required for the regulation, the Board finds that given the percentage of exposure and his daily use of the creams, his dermatophytosis more nearly approximates the criteria for a 10 percent rating for the entire appeal period. A higher rating is not warranted as he does not come close to having 20 percent of his entire body affected, and the Veteran does not require systemic therapy of corticosteroids or other immunosuppressive drugs to treat his dermatophytosis, to include tinea pedis, of the bilateral feet; the Board notes that topical treatment is not characteristic of a systemic (oral) corticosteroid as required for a higher rating. Therefore, the Veteran's dermatophytosis, to include tinea pedis, of the bilateral feet warrants a 10 percent disability rating, but no higher, during the appeal period. Accordingly, a 10 percent rating is granted for the entire appeal period. 2. Entitlement to service connection for a psychiatric disorder, to include schizophrenia Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. VA's Office of General Counsel has issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). At the outset, the Board acknowledges that, according to the November 2021 VA examination, the Veteran has a diagnosis of schizophrenia, multiple episodes, in partial remission. Therefore, a current disability is established. As to in service incurrence, no psychiatric disability was noted at the Veteran's entry into service, thus the presumption of soundness attaches. However, in this case, there is a question as to whether the presumption of soundness has been rebutted. The Board must determine whether there is clear and unmistakable evidence which indicates the Veteran's schizophrenia preexisted service and, if so, whether there is clear and unmistakable evidence that the preexisting condition was not aggravated by service. In June 2016, the Veteran underwent a VA examination. The examiner did not comment on whether the Veteran's schizophrenia clearly and unmistakably existed prior to service except to not the Veteran was "psychiatrically hospitalized" at the age of 13. The examiner opined it was less likely than not that the Veteran's military service permanently aggravated the course of the Veteran's mental health disorder beyond its natural progression. Although the examiner provided thorough rationale for his opinion on nexus, the opinion does not meet the burden of clear and unmistakable evidence as to aggravation. Thus, it has limited to no probative value. In November 2021, a VA examiner opined that the Veteran's schizophrenia, clearly and unmistakably existed prior to service, based on evidence that the Veteran received inpatient psychiatric care for symptoms related to schizophrenia when he was approximately 13 years of age. The examiner determined that the Veteran's schizophrenia was clearly and unmistakably not aggravated beyond its natural progression by service given that the Veteran has had diminished functioning in major areas of his life to include work, in interpersonal relations since the onset of his disorder, and his prognosis was poor from the outset. The examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). To the extent that the Veteran is asserting that his pre-existing schizophrenia was aggravated during service, the Board finds that the VA examiner's opinion is the most probative evidence on this question. The examiner reviewed the evidence, examined the Veteran, and rendered the opinion based on the record, the examination, medical literature, and the examiner's training and experience. Consequently, the Board gives more probative weight to the November 2021 opinion. Moreover, the Veteran testified that his schizophrenia was severe enough to require hospitalization as a teenager. However, when he entered the military, he was not found to have a psychiatric disorder. The Veteran testified that his depressive symptoms were present during service but that he was not on any medication, nor did he receive any counseling during service. Indeed, the Veteran underwent a mental status evaluation during service wherein the Veteran did not exhibit any evidence of any mental health problems. Although the evaluation is undated, it was conducted after the Veteran achieved the E-4 rank in December 1976. The June 2016 VA examiner also noted that the Veteran's depressive symptoms were likely a temporary manifestation caused by an increase of stress. The Veteran's STRs reveal he endorsed "depression and excessive worry" upon separation. On examination in December 1977, it was determined these symptoms were related to his "Chapter 13" separation. Given that the Veteran's schizophrenia was determined to have pre-existed service and to clearly and unmistakably have not been aggravated therein, there is no inservice incurrence, i.e. event, disease, or injury, upon which service connection can be based. (Continued on the next page) In light of the above, the Board finds that entitlement to service connection for a psychiatric disorder, to include schizophrenia, is denied. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman 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.