Citation Nr: 22018699 Decision Date: 03/30/22 Archive Date: 03/30/22 DOCKET NO. 18-37 186 DATE: March 30, 2022 ORDER New and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral foot disability and to that extent only the claim is granted. Entitlement to a rating in excess of 0 percent prior to January 2, 2022, and in excess of 10 percent as of January 2, 2022, for tinea pedis is denied. REMANDED Entitlement to an increased rating for hemorrhoids is remanded. Entitlement to an increased rating for left foot calluses is remanded. Entitlement to service connection for a bilateral foot disability is remanded. FINDINGS OF FACT 1. The August 2008 rating decision that denied service connection for a bilateral foot disability is final. 2. The evidence received since the August 2008 rating decision, by itself, or in conjunction with previously considered evidence, is new and material to reopen a claim for service connection for a bilateral foot disability. 3. Prior to January 2, 2022, a skin disability covered less than 5 percent of the entire body; less than 5 percent of exposed body areas; and no more than topical therapy was required during any 12-month period. 4. Effective January 2, 2022, a skin disability was not manifested by involvement of 20 to 40 percent of the entire body; 20 to 40 percent of exposed body areas; and did not require systemic therapy during the past 12-month period. CONCLUSIONS OF LAW 1. The August 2008 rating decision that denied service connection for a bilateral foot disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The evidence received after the August 2008 rating decision is new and material, and the claim for service connection for a bilateral foot disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to a rating in excess of 0 percent prior to January 2, 2022, and in excess of 10 percent as of January 2, 2022, for tinea pedis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.118, Diagnostic Codes 7813- 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to January 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. 1. New and material evidence has been received to reopen a claim of entitlement to service connection for a bilateral foot disability. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions that are not timely appealed are final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided on the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA's statutory duty to assist the appellant in the development of her claim has been fulfilled. 38 U.S.C. § 5108. The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). Moreover, in determining whether the low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. The Board has thoroughly reviewed all the evidence in the claims file. The Board has an obligation to provide reasons and bases supporting a decision. However, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000) (Board must address its reasons for rejecting evidence favorable to the Veteran). The Department of Veterans Affairs (VA) Regional Office (RO) first considered and denied a claim for service connection for a bilateral foot condition in an August 2008 rating decision. At that time, the evidence of record included service treatment records, VA treatment records and lay statements from the Veteran. The August 2008 rating decision denied service connection for a bilateral foot condition because the medical evidence of record failed to show treatment for a bilateral foot condition. The Veteran was notified of the August 2008 rating decision and his appellate rights. However, the Veteran did not perfect an appeal in a timely manner or submit new and material evidence within one year of notification of that decision. The August 2008 rating decision is now final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 3.160(d), 20.200, 20.201, 20.302, 20.1103. The evidence received and submitted into the record since the August 2008 rating decision includes additional VA treatment and personnel records, and several lay statements. The evidence of record now shows medical evidence of continued treatment for bilateral foot pain. Pain may constitute a disability for VA purposes if it results in functional loss. The credibility of the newly submitted evidence is presumed in determining whether the new evidence is material. Justus v. Principi, 3 Vet. App. 510 (1992). As the medical evaluations are presumed to be credible for the limited purpose of attempting to reopen a previously denied claim, that evidence raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Accordingly, the additional evidence is also material. As new and material evidence has been received, the claim for service connection for a bilateral foot disability is reopened. 2. Entitlement to a rating in excess of 0 percent disabling prior to January 2, 2022, and in excess of 10 percent as of January 2, 2022, for tinea pedis. The Veteran has established service connection for tinea pedis, claimed as dermatophytosis. Tinea pedis is rated under Diagnostic Code 7813 for dermatophytosis. VA amended the criteria for rating skin disabilities effective from August 13, 2018. The 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 are 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, Diagnostic Code 7813, instructed to rate as disfigurement of the face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806) depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. Prior to August 13, 2018, under Diagnostic Code 7806, a 0 percent 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 the disability is rated 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. 3 8 C.F.R. § 4.118, Diagnostic Code 7806. For claims filed prior to August 13, 2018, a systematic therapy is one that that affects the entire body in its treatment of the condition. 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. Effective August 31, 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). 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. 38 C.F.R. § 4.118. Under that General Rating Formula, a 0 percent rating is assigned for no more than topical therapy required over the past 12-month period and at least one of the following: (1) characteristic lesions involving less than 5 percent of the entire body affected; or (2) characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) 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: (1) characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) 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: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) 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 the disability is rated 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, General Rating for the Skin, Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, 7824. The Veteran's claim for an increased rating was received by VA on March 13, 2014. The skin disability has been assigned a 0 percent rating prior to January 2, 2022, and a 10 percent rating, effective January 2, 2022, pursuant to Diagnostic Code 7813. At a November 2014 VA skin examination, the Veteran's examination was essentially normal with no treatments noted in the past 12 months. The examiner stated that the Veteran had tinea pedis and calluses covering less than 5 percent of the total body area, and none of the exposed body area. The condition was described as scaling, roughened skin. At an August 2017 VA examination, the examiner stated that the Veteran had no signs of infection at the time of the examination. The Veteran's examination was normal with no treatments noted in the past 12 months. The skin condition was not found to affect any percentage of the Veteran's total body area or exposed area. At a May 2018 VA examination, no tinea pedis was noted on examination. At a January 2022 VA examination, the Veteran was noted as constantly using topical antifungal cream to treat a skin condition. The skin condition covered 5 to less than 20 percent of the total area but none of the exposed body area. The condition was described as inflamed, scaly, peeling, cracked skin between the toes. Prior to January 2, 2022, the Board finds that regardless of which Diagnostic Code applied, to include the pre-August 2018 rating criteria or the post-August 2018 for Diagnostic Code 7813, the evidence of record does not show that the Veteran's condition warrants a rating in excess of 0 percent. Both the pre- and post-August 2018 rating criteria require the affected area to be at least 5 percent of the entire body or exposed area or require intermittent systemic therapy over the past 12- month period. For this period, the medical evidence shows that the skin disability affected less than 5 percent of the total body and exposed areas and did not require systemic therapy. Therefore, the skin disability does not meet the requirements for a higher rating prior to January 2, 2022. Effective January 2, 2022, the evidence of record does not show that the Veteran's condition warrants a rating in excess of 10 percent. Both the pre- and post-August 2018 rating criteria require the affected area to be at least 20 percent of the entire body or exposed area. The medical evidence shows that the Veteran's skin disability affects less than 20 percent of the total body or exposed body areas. Therefore, the skin disability does not meet the requirements for a higher rating based on affected area. The Board finds that the Veteran also does not warrant a higher rating based on the severity of required treatment. Again, under both pre- and post-August 2018 criteria, systemic therapy of some type is required for a total duration of six or more weeks, but not constantly, for the past 12 months period, for the next higher rating of 30 percent is warranted. The Board notes that there is no evidence of any systemic therapy greater than 6 weeks employed to resolve or treat the skin condition during the claims period. All VA examiners noted explicitly that no systemic treatments were required for the condition, and in VA medical records, only a topical cream was noted to be used by the Veteran to treat the skin disability. The Board notes that a topical treatment does not constitute as a systemic therapy. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). In examinations, and in VA medical records, the Veteran's application of the topical cream was only on the affected area, less than 20 percent of the body. Therefore, the treatment did not affect the whole body and is not considered systemic. Accordingly, the Board finds that a rating in excess of 0 percent, prior to January 2, 2022, and in excess of 10 percent, effective January 2, 2022, for tinea pedis, is not warranted and the Veteran's appeal must be denied as the preponderance of the evidence is against the assignment of any higher ratings. The Board finds that the evidence is not in relative equipoise. The criteria for higher ratings are not met or more nearly approximated. There is no reasonable doubt to resolve in favor of the Veteran. Therefore, the claim must be denied. 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7813. REASONS FOR REMAND 1. Entitlement to an increased rating for hemorrhoids is remanded. 2. Entitlement to an increased rating for left foot calluses is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claims of entitlement to an increased rating for hemorrhoids and entitlement to an increased rating for left foot calluses. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The record shows that the Veteran was most recently provided a VA rectum and anus examination in December 2018, over three years ago. Additionally, the record shows that the Veteran was most recently provided VA skin examination addressing his left foot calluses in May 2018, nearly four years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for additional examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, when available evidence is too old for an adequate evaluation of the current condition, VA's duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the most recent examination remote, but the examination appears to no longer indicate the current level of disability. Specifically, the Board notes that, during an October 2021 Board hearing, the Veteran articulated a worsening in severity of the service-connected disabilities since the most recent examinations. Therefore, the Board finds that a more current examination is warranted to access the current severity and manifestations of the service-connected disabilities. After all outstanding medical records are associated with the claims file, more contemporaneous examinations are needed to rate the claims for an increased rating for the hemorrhoid and left foot disabilities. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 3. Entitlement to service connection for a bilateral foot disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of service connection for a bilateral foot disability. The Veteran contends that current bilateral foot disabilities are the result of service, and specifically, are the result of wear and tear resulting from the physical nature of being in service. Post-service medical records show the Veteran has complained of and been treated for chronic foot pain. Prior to Agency of Original Jurisdiction adjudication in December 2014, the Veteran provided evidence of a potential current foot disability and potential in-service events. Pain may be a compensable disability for VA purposes if it results in functional loss. However, the Veteran has not been provided a VA examination which addresses any relationship between claimed foot disabilities and service. That is a pre-decisional duty to assist error. Therefore, the Board finds that a VA opinion is needed to determine any relationship between any current foot disabilities and active service. The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide information as to treatment for the claimed disabilities, including the names and addresses of all health care providers whose records have not already been provided to VA. On receipt of the requested information and the appropriate releases, contact all identified health care providers and request copies of all available records pertaining to treatment of the Veteran, not already of record. If identified records are not obtained, then notify the Veteran. 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for an examination to determine the current severity of service-connected hemorrhoids. The examiner should provide a full description of the disability and report all signs and symptoms necessary for rating the disability under the rating criteria. The examiner should state whether or not the hemorrhoids are mild, moderate, large, thrombotic, irreducible, with excessive redundant tissue, evidence frequent recurrences, cause persistent bleeding, cause anemia, or cause fissures. 3. Schedule the Veteran for a VA examination to determine the current severity of left foot calluses. The examiner must review the claims file and must note that review in the report. Any indicated studies should be performed. The examiner must provide all information required for rating purposes, including whether the left foot calluses result in any scars are tender, painful, unstable or otherwise symptomatic. Unretouched color photographs of the affected areas should be included in the examination report. The examiner should provide a statement as to the area, in square inches or square centimeters, of the skin affected. The examiner should also opine whether the calluses cause any scars that are deep, unstable, or painful. The examiner should state whether the calluses result in any functional impairment of the foot. The examiner should opine whether 5 percent or more of the body is affected by the calluses of the left foot. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 4. Schedule the Veteran for a VA orthopedic examination to diagnose and determine the nature and etiology of any bilateral foot disabilities. The examiner must review the claims file, including this Remand, and should indicate that review in the report. The examiner should diagnose all bilateral foot disabilities found or shown in the record during the pendency of the claim. For each foot disability diagnosed, to include any pain resulting in functional loss that constitutes a disability, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that each left and right foot disability is etiologically related to active service or any event, disease, or injury during service, including whether any foot disability (1) began during active service, (2) manifested as foot arthritis within one year after separation from service, (3) was noted during service with continuity of the same symptomatology since service, (4) was caused by the service-connected disabilities or treatment for the service-connected disabilities, to include left foot calluses and any altered gait caused by the left foot calluses, or (5) has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for any of the service-connected disabilities, to include left foot calluses and any altered gait caused by the left foot calluses. Please cite to any evidence to support a finding of foot arthritis within one year following separation from service. The examiner should address the Veteran's lay statements regarding the claimed disabilities and their etiology and symptoms during and since service. The examiner must consider and discuss the lay statements. A clearly stated rationale for each opinion offered must be provided and cannot be based on the lack of an in-service record of the claimed disability. In writing the report, the examiner should refer to any service medical records indicating treatment in service for foot complaints. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.