Citation Nr: 1134895 Decision Date: 09/19/11 Archive Date: 09/23/11 DOCKET NO. 07-39 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an increased rating for bilateral onychomycosis, currently evaluated as noncompensable. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. J. Nardone, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1993 to June 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, confirmed and continued the noncompensable evaluation in effect for oncychomycosis of the bilateral feet. The Board notes that subsequent to the issuance of the most recent supplemental statement of the case, additional VA treatment reports have been associated with the claims file in response to a different claim. A waiver of the RO's initial consideration of this evidence was not provided. However, to the extent such evidence mentions the history of the Veteran's service connected bilateral oncychomycosis and the treatment for such, this information is cumulative of evidence which was already of record and which was previously considered by the RO. Therefore, a solicitation of a waiver and/or remand for the RO's initial consideration of this evidence is not required. 38 C.F.R. § 20.1304(c) (2010). FINDING OF FACT The Veteran's service-connected bilateral oncychomycosis affects less than 1 percent of the whole body, is manifested by yellowish indurated toenails with some crusting, and subjective complaints of dry and flakey feet and toenail pain while wearing shoes; the use of corticosteroids or other immunosuppressive drugs has not been shown. CONCLUSION OF LAW The criteria for a compensable evaluation for bilateral oncychomycosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7806, 7813 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) redefined VA's duty to assist the appellant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2010). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In a November 2006 letter, issued prior to the rating decision on appeal, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate his claim for an increased rating, including evidence that his service- connected disability has gotten worse. The letter informed the Veteran of what information and evidence he must submit and what information and evidence will be obtained by VA. In addition, the letter advised the Veteran of the necessity of providing medical or lay evidence demonstrating the nature and symptoms of his condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on his employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (VCAA notice in a claim for increased rating need not be "veteran specific"). The letter also provided examples of pertinent medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) relevant to establishing a disability rating. A similar letter was issued in January 2009. The November 2006 letter further advised the Veteran of how the VA assigns an effective date and the type of evidence which impacts such. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant. Specifically, the information and evidence that have been associated with the claims file include the service treatment records, the reports of VA examinations, VA treatment reports, an internet article submitted by the Veteran, and statements from the Veteran. As discussed above, the VCAA provisions have been considered and complied with. The appellant was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for a VA examination, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Id. at 594. However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Bilateral onychomycosis is rated under 38 C.F.R. § 4.118, Diagnostic Code 7813 for dermatophytosis. Diagnostic Code 7813 provides rating criteria for dermatophytosis and provides that the disability is to be rated based on disfigurement of the head, face or neck, scars, or dermatitis, depending upon the predominant disability. As the Veteran's service-connected bilateral onychomycosis affects his feet, it therefore does not involve his head, face or neck. As there is no permanent scar or disfigurement, the Board finds that dermatitis is the most predominant disability and the bilateral onychomycosis will be rated using the criteria for rating dermatitis or eczema as contained in Diagnostic Code 7806. Diagnostic Code 7806 sets forth the criteria for dermatitis and eczema and provides that a noncompensable disability rating is assigned when there is 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. Assignment of a 10 percent rating is warranted when there is 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. Assignment of a 30 percent rating is warranted when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are 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. Assignment of a 60 percent evaluation is warranted when more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive are required during the past 12-month period. See Diagnostic Code 7806, 38 C.F.R. § 4.118 (2010). Turning to the evidence, the Veteran was provided with a VA QTC Medical Services examination in November 2006 to evaluate his oncychomycosis of the bilateral feet. He reported that the condition had existed for the prior nine years. The Veteran endorsed symptoms of crusting and shedding. The symptoms described occurred constantly. The skin disease did not involve any areas exposed to the sun. The Veteran reported treatment during the previous 12 months consisting of topical medicine and Itraconazole for less than six weeks. He denied any functional impairment. The Veteran reported little relief in his symptoms and no side effects with the treatment. Upon physical examination of the skin, there was no scar present. The Veteran had yellowish indurated toenails bilaterally. This was consistent with his diagnosis of oncychomycosis. There was no ulceration or exfoliation noted. There was some crusting in the great toenails present. Lesion to the whole body was less than 1 percent. There was no tissue loss noted. There was some induration of less than six square inches. There was no inflexibility, hypopigmentation, or limitation of motion. The toenails were hyperpigmented less than six square inches and had abnormal and irregular texture less than six square inches. The skin lesions did not appear to be associated with systemic disease or manifest in connection with the nervous condition. The examiner indicated that for the established diagnosis of oncychomycosis of the bilateral feet, there was no change in the diagnosis. VA treatment records dated during the course of this appeal reveal that the Veteran has sought treatment for a fungal infection of the toenails. He was assessed with dermatophytosis and his treatments have included topical medicated creams and regiments of non-steroidal oral medication (Itraconazole). In written statements, the Veteran states that he is entitled to an increase for his service-connected oncychomycosis because he has been placed on a systemic drug therapy regiment in addition to being prescribed a topical cream to use on his feet to help relive the dryness and cracking. He has related that he has not had positive results with the medication. He claims that his toenails are thick and black and his feet are dry and flakey. He says that the toenails also cause pain with the shoes that he wears. In support of his claim, the Veteran has also submitted an internet article describing the nature and treatment of oncychomycosis. However, the article is general in nature and not specific to the Veteran. Additionally, the Board notes that while the article indicates that treatments for oncychomycosis may include antifungal drugs, it makes no mention of the use of corticosteroids or other immunosuppressive drugs. In light of the evidence of record and applicable law, the Board finds that the Veteran's oncychomycosis is appropriately evaluated as noncompensable. The evidence shows that such disability is manifested by yellowish indurated toenails with some crusting, and subjective complaints of dry and flakey feet and pain with shoes due to the toenails. However, the medical evidence of record does not reflect 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; the use of intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. The November 2006 VA examiner reported that there was less than 1 percent lesion to the whole body. Additionally, while the Veteran has been prescribed oral anti-fungal medication, such is not shown to be corticosteroids or other immuno-suppressive drugs to warrant a compensable evaluation. In view of the foregoing discussion, the Board finds that the preponderance of the evidence is against a compensable rating for the Veteran's bilateral oncychomycosis for the period at issue in this appeal as his service-connected disability simply does not more closely approximate the criteria for the next higher rating of 10 percent, as contemplated in Diagnostic Code 7806. The appeal is therefore denied. The Board notes representative's argument that the VA examiner indicated that the Veteran's onychomycosis caused difficulty with prolonged standing, walking, bending at the waist or dressing. However, those statements on the examination were actually made in the discussion of the Veteran's back condition. With respect to the onychomycosis, the examiner noted that the Veteran denied functional impairment. The Board also notes that while the RO evaluated the Veteran's disability under Diagnostic Code 7813, it actually listed the disability as Diagnostic Code 5284-7813 on the rating code sheet, presumably to identify the skin condition as being of the feet. However, Diagnostic Code 5284 pertains to foot injuries, which is not the case here. Diagnostic Code 7813 specifically contemplates fungal infection of the nails and feet, and is not an unlisted condition requiring an analogous rating. See 38 C.F.R. § 4.20. The use of Diagnostic Code 5284 is not supported by the evidence as the record shows the Veteran is service connected for a skin condition of the feet, not an orthopedic disorder. In any event, the VA examiner noted there was no functional impairment due to the onychomycosis. Finally, the Board has also considered whether the Veteran's bilateral oncychomycosis presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2010); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the appellant's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER A compensable evaluation for bilateral onychomycosis is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs