CHRONIC OBSTRUCTIVE PULMONARY DISEASE (COPD)

Summary

The veteran, who served from July 1995 to July 1998, appeals the denial of service connection for bronchial asthma, dermatophytosis, and several foot and leg conditions, as well as an increased rating for asthma. The Board denied the claims for bronchial asthma and dermatophytosis. For asthma, the Board found that the evidence did not support a rating higher than 30 percent prior to December 5, 2019, or higher than 60 percent thereafter, based on pulmonary function test results and treatment history. The Board denied a compensable rating for dermatophytosis, finding it affected less than 5 percent of the body and required only topical therapy, not meeting the criteria for a higher rating under either former or current regulations. The veteran withdrew appeals for a left epididymal cyst, left and right shin splints, left and right foot disorders (including plantar fasciitis, pes planus, metatarsalgia, and degenerative joint disease), and left and right great toe disorders. The Board dismissed these withdrawn claims. The case involved a procedural error where a prior Board decision granting a higher asthma rating was vacated, and the AOJ failed to recognize this vacatur. The Board clarified that the prior favorable decision was not controlling due to the vacatur and that the current adjudication reflects the correct legal status. The Board remanded claims for residuals of chondrosarcoma of the pelvis, left and right knee disorders, and right foot plantar fasciitis for further development, including a TERA memorandum and examination for the pelvic chondrosarcoma, and for the AOJ to address secondary service connection for the knee and foot claims.

Rationale

Pulmonary function tests did not meet criteria for higher ratings.; Treatment history did not support higher ratings.; Prior vacated decision was not controlling.

Full Decision Text

Citation Nr: A26033105
Decision Date: 04/09/26	Archive Date: 04/09/26

DOCKET NO. 200826-117515
                 DATE: April 9, 2026

ORDER

Entitlement to an initial rating higher than 30 percent prior to December 5, 2019 and higher than 60 percent thereafter for the service-connected bronchial asthma is denied.

Entitlement to an initial compensable rating for the service-connected dermatophytosis, including onychomycosis (toenail fungus), tinea pedis (foot fungus), and tinea cruris (jock itch), is denied.

The appeal for service connection for a left epididymal cyst is dismissed.

The appeal for service connection for left leg shin splints is dismissed.

The appeal for service connection for right leg shin splints is dismissed.

The appeal for service connection for a left foot disorder, to include plantar fasciitis, pes planus, metatarsalgia, and degenerative joint disease, is dismissed.

The appeal for service connection for a right foot disorder other than plantar fasciitis, to include pes planus, metatarsalgia, and degenerative joint disease, is dismissed.

The appeal for service connection for a left great toe disorder is dismissed.

The appeal for service connection for a right great toe disorder is dismissed.

REMANDED

Entitlement to service connection for residuals of chondrosarcoma of the pelvis is remanded.

Entitlement to service connection for a left knee disorder is remanded.

Entitlement to service connection for a right knee disorder is remanded.

Entitlement to service connection for right foot plantar fasciitis is remanded.

REFERRED ISSUE

In a December 14, 2020 rating decision, the AOJ implemented the December 2020 Board's decision granting a 60 percent rating for the service-connected asthma effective March 5, 2013. The AOJ did not reverse its implementation following the Board's vacatur of its decision on January 12, 2021. The Board instructs the AOJ to take all necessary steps to correct this error.  

FINDINGS OF FACT

1. Prior to December 5, 2019, the Veteran's asthma required daily inhalational or oral bronchodilator therapy and post-bronchodilator pulmonary function test results showed FEV-1 of 55 percent predicted, at worst.

2. From December 5, 2019 onward, pulmonary function test results showed FEV-1 of 55 percent predicted, at worst.

3. The Veteran's dermatophytosis impacted less than 5 percent of the total body area and none of the exposed areas of the body, at worst, and required no more than topical therapy. 

4. Prior to a decision, the Veteran withdrew his appeals for service connection for a left epididymal cyst, left leg shin splints, right leg shin splints, a left foot disorder, to include plantar fasciitis, pes planus, metatarsalgia, and degenerative joint disease, a right foot disorder other than plantar fasciitis, to include pes planus, metatarsalgia, and degenerative joint disease, a left great toe disorder, and a right great toe disorder during the August 29, 2024 Board hearing.  

CONCLUSIONS OF LAW

1. The criteria for an initial rating higher than 30 percent prior to December 5, 2019 and higher than 60 percent thereafter for the service-connected bronchial asthma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.97, Diagnostic Code 6602.

2. The criteria for an initial compensable rating for the service-connected dermatophytosis, including onychomycosis (toenail fungus), tinea pedis (foot fungus), and tinea cruris (jock itch) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806.

3. The criteria for withdrawal of appeal for service connection for a left epididymal cyst have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

4. The criteria for withdrawal of the appeal for service connection for left leg shin splints have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

5. The criteria for withdrawal of the appeal for service connection for right leg shin splints have been
.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806.

3. The criteria for withdrawal of appeal for service connection for a left epididymal cyst have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

4. The criteria for withdrawal of the appeal for service connection for left leg shin splints have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

5. The criteria for withdrawal of the appeal for service connection for right leg shin splints have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

6. The criteria for withdrawal of the appeal for service connection for a left foot disorder, to include plantar fasciitis, pes planus, metatarsalgia, and degenerative joint disease, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

7. The criteria for withdrawal of the appeal for service connection for a right foot disorder other than plantar fasciitis, to include pes planus, metatarsalgia, and degenerative joint disease, have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

8. The criteria for withdrawal of the appeal for service connection for a left great toe disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

9. The criteria for withdrawal of the appeal for service connection for a right great toe disorder have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1995 to July 1998.

In the August 26, 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on August 29, 2024. 

Therefore, the Board may only consider the evidence of record at the time of the August 2020 Supplemental Statement of the Case, as well as any evidence submitted by the Veteran or his attorney at the hearing or within 90 days following the hearing. 38 C.F.R. §?20.302(a). If evidence was submitted either (1) during the period after the August 2020 Supplemental Statement of the Case and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

The Board notes that there is a significant amount of evidence that was received outside the evidentiary period. If the Veteran would like VA to consider any evidence that was submitted and the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim[s], considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claims of service connection for residuals of chondrosarcoma of the pelvis, left and right knee disorders, and right foot plantar fasciitis, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

The Veteran also testified at a Board hearing in May 2019. A transcript for both Board hearings is in the claims file. 

In December 2020, the Board adjudicated the present claims under docket number 15-31 883, but this was mistakenly done after the Veteran had opted the claims into the AMA appeals system.  There was a delay in uploading his AMA opt-in to the claims file, so it was not of record when the Board issued the December 2020 decision.  Therefore, the Board vacated that decision in January 2021. Accordingly, the Board is adjudicating the issues as they were presented in the August 2020 Supplemental Statement of the Case and August 2020 VA Form 10182. 

In the December 2020 Board decision, the Board took jurisdiction over the issue
 in the claims file. 

In December 2020, the Board adjudicated the present claims under docket number 15-31 883, but this was mistakenly done after the Veteran had opted the claims into the AMA appeals system.  There was a delay in uploading his AMA opt-in to the claims file, so it was not of record when the Board issued the December 2020 decision.  Therefore, the Board vacated that decision in January 2021. Accordingly, the Board is adjudicating the issues as they were presented in the August 2020 Supplemental Statement of the Case and August 2020 VA Form 10182. 

In the December 2020 Board decision, the Board took jurisdiction over the issue of entitlement to a total disability rating based on individual unemployability (TDIU). The AOJ later granted entitlement to a TDIU in a February 2021 rating decision, effective August 21, 2020. There is a separate appeal pending before the Board for an earlier effective date for the TDIU award, under docket number 220617-253224. Accordingly, the Board does not find that it is appropriate to take jurisdiction over entitlement to an earlier effective date for the TDIU award as part of this appeal stream. This was discussed with the Veteran and his attorney at the August 2024 Board hearing, and the attorney agreed the TDIU issue was best addressed in the other pending appeal stream. The Veteran had a hearing on that appeal in December 2025, and he will receive a separate decision in the ordinary course of business.

The Veteran also has an appeal pending under docket number 200914-109129 concerning entitlement to an earlier effective date and higher initial rating for major depressive disorder. The Veteran had a hearing on that appeal in December 2024, and he will receive a separate decision in the ordinary course of business.

1. Entitlement to an initial rating higher than 30 percent prior to December 5, 2019 and higher than 60 percent thereafter for the service-connected bronchial asthma is denied.

In December 2020, the Board adjudicated the present claims under docket number 15-31 883 and granted a 60 percent rating for the service-connected asthma effective March 5, 2013. However, the Veteran had opted the claims into the AMA appeals system following the August 2020 Supplemental Statement of the Case, but there was a delay in uploading that opt-in to his electronic claims file. Therefore, the Board vacated that decision in January 2021 and redocketed the appeal in the AMA system.

In a December 14, 2020 rating decision, the AOJ implemented the December 2020 Board's decision The AOJ did not reverse its implementation following the Board's vacatur of its decision on January 12, 2021. However, from a legal perspective, the vacatur of that decision applied to all conclusions reached, including the grant of a higher rating. See January 12, 2021 Order vacating, in part, the grant of an increased initial rating for bronchial asthma. The Board cannot now be bound by the fact the AOJ failed to recognize that the favorable decision had been vacated and has kept the Veteran's rating at 60 percent. The proper legal status of the claim, because of the vacatur, is how the issue was presented in the August 2020 Supplemental Statement of the Case and August 2020 VA Form 10182.  This was fully explained to the Veteran and his attorney at the August 2024 Board hearing.

The Board is not reducing the Veteran's rating herein, but, instead, because of the unique procedural history of this case, adjudicating the issue as it should be due to the legal implications of the vacatur of the December 2020 Board decision.  Once the AOJ takes the necessary steps to recognize the Board's vacatur of its decision on January 12, 2021, if any overpayment is created, the Veteran will have an opportunity to appeal that determination. 

The Veteran seeks a higher rating for his service-connected asthma, which was rated as 30 percent disabling prior to December 5, 2019 and 60 percent thereafter. The appeal period stems from March 5, 2013, the effective date for the award of service connection. However, other than the evidence properly submitted at or within 90 days of the August 2024 Board hearing, the Board's review is limited to the evidence that was of record as of August 5, 2020, the date the Supplemental Statement of the Case was issued. 

His disability is rated under 38 C.F.R. § 4.97, Diagnostic Code 6602. Diagnostic Code 6602 rates based on pulmonary function tests (PFTs) and the relevant terms
 asthma, which was rated as 30 percent disabling prior to December 5, 2019 and 60 percent thereafter. The appeal period stems from March 5, 2013, the effective date for the award of service connection. However, other than the evidence properly submitted at or within 90 days of the August 2024 Board hearing, the Board's review is limited to the evidence that was of record as of August 5, 2020, the date the Supplemental Statement of the Case was issued. 

His disability is rated under 38 C.F.R. § 4.97, Diagnostic Code 6602. Diagnostic Code 6602 rates based on pulmonary function tests (PFTs) and the relevant terms for measurement are: Forced Expiratory Volume in one second (FEV-1); Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC); and Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)). See 38 C.F.R. §§ 4.96, 4.97.

Diagnostic Code 6602 rates as follows: FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication (30 percent);  FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids (60 percent); and FEV-1 of less than 40 percent predicted, or FEV-1/FVC of less than 40 percent, or more than one attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications (100 percent). 38 C.F.R. § 4.97, Diagnostic Code 6602.

When evaluating based on PFTs, post-bronchodilator results are used in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. See 38 C.F.R. § 4.96. In those cases, use the pre-bronchodilator values for rating purposes. See id. When there is disparity between the results of different PFTs so that the level of evaluation would differ depending on which test result is used, the Board uses the test result that the examiner states most accurately reflects the level of disability. See id.

Turning to the evidence, the Veteran underwent a respiratory examination in November 2013. The examiner noted that the Veteran's asthma required intermittent inhalational bronchodilator therapy only, and his asthma did not cause attacks with episodes of respiratory failure nor require physician visits to care for exacerbations. While PFTs were performed, the examiner was unable to interpret the results, and the spirometry curve was not acceptable or reproducible. 

The Veteran testified that the November 2013 testing was inadequate or inconclusive because he had chondrosarcoma of the pelvis, a cancer that had metastasized to his lungs requiring resection of the lungs. See Board hearing transcript, May 2019. The November 2013 VA examination does not describe any lung-related cancer or treatment; however, VA treatment records show that the Veteran underwent a wedge resection for a pulmonary metastasis from chondrosarcoma in March 2014. Accordingly, the Board did not rely on the November 2013 results. 

In February 2016, his VA primary care provider ordered new PFTs because the November 2013 PFTs were suboptimal. Pre-bronchodilator testing revealed FEV-1 of 55 percent predicted and FEV-1/FVC of 62 percent. Post-bronchodilator testing revealed FEV-1 of 74 percent predicted and FEV-1/FVC of 72 percent. 

The Veteran was afforded another VA respiratory conditions examination in March 2017. The examiner documented that the Veteran's asthma required daily inhalational bronchodilator therapy and use of a nebulizer two to three times per week. His asthma did not require oral or parenteral corticosteroids nor outpatient oxygen therapy. It also did not cause asthma attacks with episodes of respiratory failure in the past 12 months nor require physician visits for exacerbations. Pre-bronchodilator testing revealed FEV-1 of 65 percent predicted and FEV-1/FVC of 64 percent. Post-bronch
ator testing revealed FEV-1 of 74 percent predicted and FEV-1/FVC of 72 percent. 

The Veteran was afforded another VA respiratory conditions examination in March 2017. The examiner documented that the Veteran's asthma required daily inhalational bronchodilator therapy and use of a nebulizer two to three times per week. His asthma did not require oral or parenteral corticosteroids nor outpatient oxygen therapy. It also did not cause asthma attacks with episodes of respiratory failure in the past 12 months nor require physician visits for exacerbations. Pre-bronchodilator testing revealed FEV-1 of 65 percent predicted and FEV-1/FVC of 64 percent. Post-bronchodilator testing revealed FEV-1 of 72 percent and FEV-1/FVC of 70 percent. The examiner stated that the Veteran's FEV-1 test result most accurately reflected his level of disability. 

Private PFTs from December 5, 2019 show FEV-1 of 55 percent predicted and FEV-1/FVC of 84 percent. 

After weighing the probative evidence, the Board finds that a rating higher than 30 percent is not warranted for the service-connected asthma prior to December 5, 2019. The February 2016 post-bronchodilator PFTs and the March 2017 VA examination show, at worst, FEV-1 of 70 percent predicted and FEV-1/FVC of 72 percent. Also, the evidence from the appeal period does not show that the Veteran required monthly visits to a physician to care for asthma exacerbations, or at least three courses of systemic corticosteroids per year. The Board acknowledges that the February 2016 PFTs show pre-bronchodilator results of FEV-1 of 55 percent predicted and FEV-1/FVC of 62 percent. Per VA regulations, however, post-bronchodilator results are used in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results, which was not the case here. See 38 C.F.R. § 4.96. 

The Board acknowledges that the December 2020 Board decision granted a 60 percent rating for the entire appeal period. Because that decision was vacated, it is not controlling here. Moreover, the Board is not now changing its conclusion merely based on a difference of opinion. Rather, the December 2020 Board decision failed to consider 38 C.F.R. § 4.96 and relied on pre-bronchodilator testing of FEV-1 of 55 percent predicted in 2016, so it was legally incorrect, and also failed to consider the March 2017 VA examination, erroneously stating the VA had not provided the Veteran another examination since the 2013 inadequate examination, so it was not based on the complete evidentiary record. 

Furthermore, a 100 percent rating is not warranted from December 5, 2019 onward. The lay and medical evidence does not show FEV-1 less than 40-percent predicted or FEV-1/FVC less than 40 percent. The evidence also does not show that the Veteran's asthma causes more than one attack per week with episodes of respiratory failure nor that it requires daily use of oral or parenteral high dose corticosteroids or immuno-suppressive medications.

For these reasons, the Board finds that higher ratings are not warranted, and the claims are denied.

2. Entitlement to an initial compensable rating for the service-connected dermatophytosis, including onychomycosis (toenail fungus), tinea pedis (foot fungus), and tinea cruris (jock itch) is denied.

The Veteran seeks a higher rating for his service-connected dermatophytosis. The appeal period stems from March 5, 2013, the effective date for the award of service connection. However, other than the evidence properly submitted at or within 90 days of the August 2024 Board hearing, the Board's review is limited to the evidence that was of record as of August 5, 2020, the date the Supplemental Statement of the Case was issued.

His service-connected dermatophytosis is rated under Diagnostic Code 7813. Effective August 13, 2018, changes were made to the regulations governing certain skin disorders. See 83 Fed. Reg. 32664 (July 13, 2018) (codified at 38 C.F.R. § 4.118 (2019)). Claims pending prior to August 13, 2018, such as the present claim, will be considered under both the former and revised criteria with the most favorable version
 the August 2024 Board hearing, the Board's review is limited to the evidence that was of record as of August 5, 2020, the date the Supplemental Statement of the Case was issued.

His service-connected dermatophytosis is rated under Diagnostic Code 7813. Effective August 13, 2018, changes were made to the regulations governing certain skin disorders. See 83 Fed. Reg. 32664 (July 13, 2018) (codified at 38 C.F.R. § 4.118 (2019)). Claims pending prior to August 13, 2018, such as the present claim, will be considered under both the former and revised criteria with the most favorable version applied to the claim. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise, however. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).  

The previous version of Diagnostic Code 7813 directed that the disability be rated as disfigurement of the head, face, or neck under Diagnostic Code 7800; as scars under Diagnostic Codes 7801, 7802, 7803, 7804, or 7805; or as dermatitis under Diagnostic Code 7806, depending on the predominant disability. See 38 C.F.R. § 4.118, Diagnostic Code 7813 (2013). Because of his symptoms, the AOJ used Diagnostic Code 7806 to assign a rating.

Under the previous Diagnostic Code 7806, a 0 percent rating was warranted for dermatitis or eczema that covers 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. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2013). A 10 percent rating was warranted for dermatitis or eczema that 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 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. See id.  

The version of Diagnostic Code 7813 in effect since August 13, 2018 directs that the condition be rated under the new General Rating Formula for the Skin. See 83 Fed. Reg. 32664 (July 13, 2018) (codified at 38 C.F.R. § 4.118 (2019)). The General Rating Formula for the Skin awards a 0 percent rating 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. See 38 C.F.R. § 4.118, General Rating Formula for the Skin (2019). It awards a 10 percent rating 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 six weeks over the past 12-month period. See id.

Under the new 38 C.F.R. § 4.118, systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin. See 38 C.F.R. § 4.118(a) (2019). Prior to the revisions, however, the term "systemic therapy" was interpreted to mean "treatment pertaining to or affecting the body as a whole," whereas topical therapy was defined as 'treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." Johnson v. Shulkin, 862 F.3d 1351, 1355 (Fed. Cir. 2017). Thus, depending on the pervasiveness of its use, the use of a topical corticosteroid could constitute systemic therapy for the purposes of the rating criteria. See id.

The Veteran's VA treatment records show that he complained of it
 Prior to the revisions, however, the term "systemic therapy" was interpreted to mean "treatment pertaining to or affecting the body as a whole," whereas topical therapy was defined as 'treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." Johnson v. Shulkin, 862 F.3d 1351, 1355 (Fed. Cir. 2017). Thus, depending on the pervasiveness of its use, the use of a topical corticosteroid could constitute systemic therapy for the purposes of the rating criteria. See id.

The Veteran's VA treatment records show that he complained of itchy feet and fungal nails at a March 2015 podiatry consultation. He was diagnosed with onychomycosis and tinea pedis and prescribed antifungal creams for treatment. He did not complain of relevant symptoms at a May 2017 dermatology appointment. In April 2019, he complained of a fungal infection on his toenails. In February 2020, a primary care skin assessment revealed erythema on his groin and scaly areas on his penis. He was prescribed ketoconazole shampoo specifically for the tinea cruris. In March 2020, he was evaluated with tinea pedis at a podiatry consultation, and it was noted that his toenails were normal at that visit. He was prescribed an antifungal cream. There is no documented treatment for a scalp fungal infection. 

He has also undergone multiple VA examinations during the appeal period. In November 2013, he reported a fungal infection that involved his bilateral great toes only and he denied treatment. The examiner noted that his bilateral great toenails were thick and yellow and that no other nails were involved. She diagnosed the Veteran with onychomycosis that impacted less than 5 percent of his total body area and none of his exposed areas. 

In February 2020, the examiner noted that the Veteran treated his condition with a topical ketoconazole shampoo for approximately 6 weeks or more in the past 12 months, but not constantly. The examiner concluded the dermatophytosis and tinea cruris condition affected less than 5 percent of his total body area and none of his exposed body area.

In April 2020, the Veteran reported intermittent flare-ups on his groin and his big toenails and that he was prescribed topical creams for treatment. The examiner noted that the Veteran used topical antifungal cream and a topical antiseptic/antifungal solution only for approximately 6 weeks or more in the past 12 months, but not constantly. The examiner concluded the dermatophytosis and tinea cruris condition affected less than 5 percent of his total body area and none of his exposed body area.

In May 2020, the examiner documented that the Veteran uses topical ketoconazole to treat his tinea pedis and tinea cruris and topical ammonium lactate cream to treat his tinea pedis, for 6 weeks of more in the past 12 months, but not constantly. The examiner noted that the Veteran's dermatophytosis affected the great toenails on his left and right feet at the time of the examination. The examiner concluded that his dermatophytosis affected between 5 percent and less than 20 percent of his total body area and exposed area. The examiner also noted the body area covered by his nonservice-connected alopecia and dermatofibromas. In the remarks section, the examiner clarified that all of his skin conditions impacted 8 percent of his total body area and two percent of his exposed area. The examiner did not clarify whether the Veteran's nonservice-connected skin conditions were included in the 8 percent. 

The Board also considered the October 2020 VA skin examination. Although it was completed after the Supplemental Statement of the Case, the Veteran submitted it during the open evidentiary period. In the medical history section, the examiner noted fungus for groin and big toenails. The Veteran also reported fungal infections of his scalp, and the examiner noted that he was prescribed a daily topical steroid cream for his scalp and he used a ketoconazole shampoo on a constant/near-constant basis. For his dermatophytosis, the examiner assessed that it impacts less than 5 percent of his total body area and none of his exposed areas. 

The Board finds that the May 2020 examiner's calculations are unsupported by the Veteran's statements made seeking treatment, the examiner's own findings, and the other VA examinations. The Veteran's statements made seeking treatment and at VA examinations, and the VA examiner's examination findings, show that his bilateral big toenails and partial groin are impacted only. Four other VA examiners determined that this constitutes less than 5 percent of the total body area
 examiner noted that he was prescribed a daily topical steroid cream for his scalp and he used a ketoconazole shampoo on a constant/near-constant basis. For his dermatophytosis, the examiner assessed that it impacts less than 5 percent of his total body area and none of his exposed areas. 

The Board finds that the May 2020 examiner's calculations are unsupported by the Veteran's statements made seeking treatment, the examiner's own findings, and the other VA examinations. The Veteran's statements made seeking treatment and at VA examinations, and the VA examiner's examination findings, show that his bilateral big toenails and partial groin are impacted only. Four other VA examiners determined that this constitutes less than 5 percent of the total body area and none of the exposed body areas. It is also unclear whether the Veteran's nonservice-connected conditions were included in the 8 percent calculation. 

Furthermore, an addendum medical opinion was obtained from the February 2020 VA examiner to clarify the extent to which the Veteran's combined service-connected skin conditions impact his total body area and exposed body area. He stated that even if one were to combine each of the Veteran's service-connected dermatophytoses, the total body area affected would still remain less than 5 percent because the two impacted areas are anatomically insignificant with regard to the total surface area of the human adult body. 

For these reasons, the Board finds that the May 2020 examination report is not probative evidence regarding the total body and exposed areas impacted by the Veteran's service-connected skin conditions. 

The Board also considered the Veteran's testimony in the May 2019 and August 2024 Board hearings. In May 2019, he testified that he is entitled to a higher rating for his bilateral foot fungus because he finds the fungal infection of his toenails is more disabling than the current evaluation reflects. The Veteran states that due to this condition, his great toe toenails sometimes fall off and he must wear flip-flops until they grow back. The fungal infection also causes itching, flaking of the skin, and inflammation. In the August 2024 hearing, he testified that he uses an over-the-counter antifungal shampoo as a body wash and has never been prescribed oral steroids for treatment. While he testified that he was prescribed a steroidal cream by VA for his dermatophytosis, and reported this during his October 2020 VA examination, his treatment records do not corroborate that. 

After weighing the evidence, the Board finds that a compensable rating is not warranted. Based on the Veteran's statements, VA treatment records, and VA examinations, the Veteran's dermatophytosis affected, at most, less than 5 percent of his total body area and none of his exposed body areas during the appeal period. Furthermore, his condition only required topical antifungal creams and shampoos that were applied locally. Finally, all medical evidence prior to the October 2020 medical examination is negative for steroid cream treatment. However, assuming the Veteran's reports are accurate, such treatment does not constitute "systemic therapy" under current regulations such that a higher rating would be warranted. See 38 C.F.R. § 4.118(a) (2019). Moreover, because he reported that he only used it on his scalp, it would not constitute "systemic therapy" under the previous regulations either. See Johnson v. Shulkin, 862 F.3d 1351, 1355 (Fed. Cir. 2017) (holding that "systemic therapy" meant "treatment pertaining to or affecting the body as a whole").

The Board acknowledges that the Veteran believes that the disability on appeal is or has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include observable changes in his own skin, and his reports are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds, however, that the VA examiners' collective opinions are more probative than the Veteran's lay assessment.

Accordingly, a compensable rating is not warranted under the former or amended regulations, and the claim is denied.

3. The appeal for service connection for a left epididymal cyst is dismissed.

4. The appeal for service connection for left leg shin splints is dismissed.

5. The appeal for service connection for right leg shin splints is dismissed.

6. The appeal for service connection for a left foot disorder, to include plantar fasciitis, pes planus, metatarsalgia, and degenerative joint disease, is dismissed.

7. The appeal for service connection for a right foot disorder other than plantar fasciitis, to include pes planus, metatarsalgia, and degenerative joint disease, is dismissed.

8. The appeal
 rating is not warranted under the former or amended regulations, and the claim is denied.

3. The appeal for service connection for a left epididymal cyst is dismissed.

4. The appeal for service connection for left leg shin splints is dismissed.

5. The appeal for service connection for right leg shin splints is dismissed.

6. The appeal for service connection for a left foot disorder, to include plantar fasciitis, pes planus, metatarsalgia, and degenerative joint disease, is dismissed.

7. The appeal for service connection for a right foot disorder other than plantar fasciitis, to include pes planus, metatarsalgia, and degenerative joint disease, is dismissed.

8. The appeal for service connection for a left great toe disorder is dismissed.

9. The appeal for service connection for a right great toe disorder is dismissed.

The Board may dismiss any appeal which fails to identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(d). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.205. Withdrawal may be made by an appellant or an appellant's authorized representative. Id. 

An oral withdrawal of an appeal, such as one made at a hearing, must be (1) explicit, (2) unambiguous, and (3) done with a full understanding of the consequences of such action on the part of the appellant. Acree v. O'Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011).

During the Board hearing on August 29, 2024, the Veteran, with his attorney, withdrew the claims for service connection for a left epidydimal cyst, left and right leg shin splints, all left foot and toe disorders, and all right foot and toe disorders excluding right foot plantar fasciitis. All of the aforementioned requirements have been met. Accordingly, the Board does not have jurisdiction to review the appeals, and the claims are dismissed.

The AOJ granted service connection for a left epidydimal cyst in a February 2022 rating decision. This dismissal does not impact that grant. 

REASONS FOR REMAND

With respect to all claims being remanded, to the extent the Veterans Law Judge in the May 2019 hearing and August 2019 Board remand discussed the credibility of the Veteran's reports regarding his symptoms in service and after service, the Board is notifying the Veteran that the Board will reassess the credibility of his contentions if the appeals return. See Smith v. Wilkie, 32 Vet. App. 332, 334 (2020). The Veteran and his representatives should understand that all of these factual issues have not yet been resolved in his favor, so they should develop and submit any evidence they think appropriate to enable the Board to make a credibility determination regarding all of these facts. See id.

1. Entitlement to service connection for residuals of chondrosarcoma of the pelvis is remanded.

The Veteran argued that his chondrosarcoma was caused by toxic exposure risk activities (TERAs) in service at the May 2019 Board hearing. A VA examination and medical opinion on the combined effect of all TERAs is required, pursuant to the SFC Heath Robinson Honoring Our PACT Act, Pub. L. 117-168, 136 Stat. 1759 ("PACT Act"). See 38 U.S.C. § 1168(a). Because the PACT Act was passed after the August 2020 Supplemental Statement of the Case, the AOJ did not commit a pre-decisional duty to assist error; however, pursuant to 38 C.F.R. § 20.802(a), a remand is permitted to satisfy any statutory or regulatory duty that could aid in substantiating the claim. Therefore, the AOJ should complete a TERA memorandum and obtain the TERA examination and opinion on remand.

2. Entitlement to service connection for a left knee disorder is remanded.

3. Entitlement to service connection for a right knee disorder is remanded.

The Veteran contends that his left and right knee disorders began in service or are secondary to his service-connected right ankle and toe disabilities. The AOJ obtained an examination and medical opinion in April 2020 per the Board's August 2019 remand instructions; however, the examiner did not address the secondary service connection assertions. The Board finds that this constitutes a pre-decisional error and a remand is warranted. 

Moreover, the medical evidence shows lower left extremity impairment related to the treatment for the Veteran's chondrosar
 the TERA examination and opinion on remand.

2. Entitlement to service connection for a left knee disorder is remanded.

3. Entitlement to service connection for a right knee disorder is remanded.

The Veteran contends that his left and right knee disorders began in service or are secondary to his service-connected right ankle and toe disabilities. The AOJ obtained an examination and medical opinion in April 2020 per the Board's August 2019 remand instructions; however, the examiner did not address the secondary service connection assertions. The Board finds that this constitutes a pre-decisional error and a remand is warranted. 

Moreover, the medical evidence shows lower left extremity impairment related to the treatment for the Veteran's chondrosarcoma of the pelvis. His treatment records also show complaints of knee pain related to gait changes associated with treatment for his chondrosarcoma. Accordingly, the claims are inextricably intertwined and must be remanded. 

4. Entitlement to service connection for right foot plantar fasciitis is remanded.

The Veteran contends that his right foot plantar fasciitis began in service or is secondary to his service-connected right ankle and toe disabilities. The AOJ obtained an examination and medical opinion in February 2020 per the Board's August 2019 remand instructions; however, the examiner did not address plantar fasciitis. Because the Veteran's medical records show a plantar fasciitis diagnosis prior to the August 2020 Supplemental Statement of the Case, the Board finds that this constitutes a pre-decisional error and a remand is warranted. 

The matters are REMANDED for the following action:

1. Complete a TERA memorandum and associate the memorandum with the claims file.

2. Once the TERA memorandum is completed, schedule the Veteran for a TERA-specific examination and opinion regarding whether there is a nexus between the Veteran's chondroma sarcoma of the pelvis and any toxic exposure risk activity. The Veteran's claims file must be made available to the examiner, including the TERA memorandum so that the examiner is aware of the specific TERA(s) to which the Veteran was exposed during service. 

After a review of the claims file, the examiner should respond to the following:

(a.) Is it at least as likely as not that the Veteran's chondrosarcoma of the pelvis is related to service?

(b.) If the criteria for a TERA are met, the examiner must consider: (a) the total potential exposure through all applicable military deployments of the Veteran; AND (b) the synergistic, combined effect of all the Veteran's toxic risk exposure activities.

3. Obtain VA medical opinions for the Veteran's left and right knee disorder and right foot plantar fasciitis claims. An examination is unnecessary unless determined otherwise by the examiner. 

After reviewing the evidence, the examiner should respond to the following:

Is it at least as likely as not that the Veteran's service-connected right toe and/or right ankle disabilities caused or aggravated his left knee disorder, right knee disorder, and/or right foot plantar fasciitis? 

 

 

MICHELLE L. KANE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	M. Lavan

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.