Citation Nr: 18123957
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 96-06 407
DATE:	August 3, 2018
ORDER
A 60 percent rating, and no higher, for tinea cruris, tinea pedis, genital herpes, and post-inflammatory hypopigmentation on right thigh and legs, from February 2, 2009, is granted, subject to the regulations governing the award of monetary benefits.
(The issues of service connection for a left leg disability, right shoulder disability and left hand disability were addressed in a separate Board decision).
FINDING OF FACT
Veteran’s service-connected skin disabilities have required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period.
CONCLUSION OF LAW
The criteria for a 60 percent rating for tinea cruris, tinea pedis, genital herpes, and post-inflammatory hypopigmentation on right thigh and legs, for the period from February 2, 2009, are met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.27, 4.118, Diagnostic Code (DC) 7899-7806.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from December 1974 to August 1994.
The Veteran provided testimony before a Veterans Law Judge on the issue of separate (increased) ratings for the various service-connected skin disabilities in December 2013.  He again provided testimony on this issue before another Veterans Law Judge in January 2017.  Transcripts of both proceedings are of record.
Generally, Veterans Law Judges who conduct hearings must participate in making the final determination of the claims involved.  38 U.S.C. § 7107(c); 38 C.F.R. § 20.707.  By law, appeals can be assigned only to an individual Veterans Law Judge or to a panel of not less than three members.  See 38 U.S.C. § 7102(a).  When a Veteran has had a personal hearing before two separate Veterans Law Judges during the appeal and these hearings covered one or more common issues, a third Veterans Law Judge is assigned to the panel after the second Board hearing has been held.  The Court of Appeals for Veterans Claims (Court) has interpreted 38 C.F.R. § 20.707 as requiring that an appellant must be provided the opportunity for a hearing before all three Veterans Law Judges involved in a panel decision. Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011). 
In correspondence dated in May 2018, the Veteran was advised of his right to a third hearing before a third Veterans Law Judge.  Later that month, he informed VA that he waived his right to appear at an additional hearing before a third Veterans Law Judge who would be assigned to decide his appeal.  As such, the Board finds that there is no impediment to issuing the decision herein.
The Board also notes substantial compliance with the March 2014 remand directives.  The Veteran was afforded a VA examination in July 2014, where the examiner described the symptomatology related to each service-connected skin disability.  Further, the examiner stated the total area (both exposed and non-exposed) of each distinct service-connected skin disability.  Thus, the Board finds substantial compliance with the March 2014 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).
Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.
The Veteran’s entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The Board must also consider whether separate ratings can be assigned for separate periods of time based on the facts found-a practice known as “staged” ratings.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged rating may be appropriate when adjudicating claims for increased ratings for already service-connected disabilities).
The Veteran is service-connected for tinea cruris, tinea pedis, genital herpes and post-inflammatory hypopigmentation on right thigh and leg.  These skin conditions are considered a single service-connected disability and the disability is currently rated as 10 percent disabling under DC 7899-7806.  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 assigned rating; the additional code is shown after the hyphen.  38 C.F.R. § 4.27.  The use of the “99” diagnostic code reflects the disability is unlisted.  Id.
The Board notes that this appeal stems from a claim for increase received on February 2, 2009.
Under DC 7806, a 10 percent rating is warranted where the skin disability covers at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent, but less than 20 percent of the exposed areas affected, or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period; a 30 percent rating is assigned when the disorder covers 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or by systemic therapy being required for a total duration of six weeks or more, but not constantly, during the past 12-month period; and a 60 percent rating is assigned when the disorder covers more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or by constant or near-constant systemic therapy being required during the past 12-month period.
In Johnson v. Shulkin, 862 F.3d 1351 (2017), the United States Court of Appeals for the Federal Circuit differentiated between systemic therapy and topical therapy. The Court concluded that systemic therapy meant “treatment pertaining to or affecting the body as a whole,” whereas topical therapy means “treatment pertaining to a particular surface area, as a topical antiinfective applied to a certain area of the skin and affecting only the area to which it is applied.”  Id. at 1355. 
The Veteran was afforded a VA examination in February 2010.  There, pseudofolliculitis barbae, genital herpes, post-inflammatory hypopigmentation, tinea cruris and tinea pedis were noted.  The Veteran noted using topical Sastid soap daily to manage his pseudofolliculitis barbae over the past 12 months.  The constant use of Acyclovir to treat genital herpes over the past 12 months was noted.  The use of clotrimazole twice per day to treat tinea cruris and tinea pedis was also noted, as was Clobetasol ointment for post-inflammatory hypopigmentation.  Diphenhydramine was used nightly for tinea cruris and tinea pedis.  The examiner stated that the Veteran’s service-connected skin disabilities are present on greater than 5 percent but less than 20 percent of his exposed areas and greater than 5 percent but less than 20 percent of his total body area.
The Veteran was afforded a VA examination in July 2014.  Constant/near-constant use of Acyclovir, topical corticosteroids, clotrimazole, Selenium Sulfide and ketoconazole shampoo was noted.  The examiner stated that the Veteran’s service-connected skin disabilities are present on 18.5% of the total areas of the skin, but no exposed areas.  Tinea cruris is present on 3.5% of the total areas of the skin, as is tinea pedis.  Tinea corporis is present on 10% of the skin (which is not service-connected).  Onchomycosis (which is also not service-connected) is present on 0.5% of the skin, while genital herpes is present on 1% of the skin.  Eczema/post-inflammatory hypopigmented areas of the skin is present on 3.5% of the total area of the skin, but no exposed areas.
In light of the above, a 60 percent rating is warranted under DC 7806 since February 2, 2009, the date of the claim for increase.
As shown above, the Veteran’s genital herpes has required constant or near-constant systemic therapy during this time period, specifically the oral medication Acyclovir.  This type of medication is considered to be systemic.  See Dorland’s Illustrated Medical Dictionary, 1888 (31st ed. 2007) (defining systemic as “pertaining to or affecting the body as a whole”).  Further, the 2010 VA examiner described this as a systemic medication, which was used constantly.  The Veteran’s use of such remained constant at the time of the 2014 VA examination.
Notably, 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. See Warren v. McDonald, 28 Vet. App. 194 (2016) (citing Mauerhan v. Principi, 16 Vet. App. 436, 442 (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.  Id. Indeed, the VA Adjudication Procedures Manual (M21-1) defines “systemic therapy such as corticosteroids or other immunosuppressive drugs” as “any oral or parenteral medication(s) prescribed by a medical professional to treat the underlying skin disorder.”  M21-1, Pt. III, Subpt. iv, Ch. 4, Sec. L(1)(f) (updated May 14, 2018).
In light of the above, the Board concludes that the use of Acyclovir is a systemic therapy, which the Veteran has used constantly throughout the period on appeal.  Thus, the criteria for a 60 percent rating have been met.
The Board has considered the Veteran’s argument that he is entitled to compensable separate ratings for his service-connected skin disabilities based upon the size of each distinct skin disability.  See Board Hearing Transcripts.  Under DC 7806, however, a 10 percent rating is warranted where the skin disability covers at least 5 percent, but less than 20 percent of the entire body, or at least 5 percent, but less than 20 percent of the exposed areas affected.  At the 2014 VA examination, the examiner approximated the total area of each service-connected skin disability and no disability, on its own, was present on at least 5 percent of the total body area or at least 5 percent of the Veteran’s exposed area.  Indeed, the disabilities did not impact the exposed areas at all.  To that end, tinea cruris was present on 3.5% of the total areas of the skin, as is tinea pedis.  Genital herpes was present on 1% of the skin.  Eczema/post-inflammatory hypopigmented areas of the skin was present on 3.5% of the total area of the skin, but no exposed areas.  Thus, there were no singular skin disabilities that met the criteria for compensable ratings on their own.
For all the foregoing reasons, a 60 percent rating, and no higher, for the Veteran’s service-connected skin disabilities from February 2, 2009, forward, is warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).
Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  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).  To that end, the Board notes that the Veteran has been in 

receipt of a total disability rating due to individual unemployability (TDIU) since February 2, 2009 (the entire pendency of this appeal).  Thus, consideration of a TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009), is moot.

 
GEORGE R. SENYK
Veterans Law Judge
Board of Veterans’ Appeals
 
 
Paul Sorisio
Veterans Law Judge
Board of Veterans’ Appeals
 
 
JAMES L. MARCH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Michael Sanford, Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


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