Citation Nr: 1307429 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 10-31 699A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an increased rating for tinea pedis with maceration and pruritus and ingrown toenails of the bilateral great toes in excess of 10 percent. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from July 1990 to July 1994. This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Newark, New Jersey, which recharacterized the original issue of tinea pedis to include ingrown toenails, and continued a non-compensable rating. The Veteran filed a timely notice of disagreement in May 2008 and the RO did not issue a statement of the case on the March 2008 rating decision. Instead, in a December 2008 rating decision, the RO granted a 10 percent increased rating for tinea pedis and ingrown toenails, effective August 8, 2007. The case was appealed to the Board in July 2010 on an unrelated issue for service connection for oral and genital herpes. Thereafter, the Board remanded the case to allow the RO the opportunity to issue a statement of the case on the appeal for a higher evaluation for tinea pedis and ingrown toenails in excess of 10 percent. The statement of the case was issued and the Veteran perfected his appeal in August 2010. Additionally, the RO granted service connection for oral and genital herpes with an evaluation of 0 percent in December 2010. The Veteran did not appeal the assigned rating and the December 2010 rating decision became final. In April 2012, The Veteran filed a new claim for an increased rating in excess of 0 percent for oral and genital herpes. The issue of entitlement to an increased rating for oral and genital herpes has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. For the entire rating period, tinea pedis with bilateral ingrown toenails has been manifested by pain, scale and erythema. 2. For the entire rating period, tinea pedis with ingrown toenails has affected less than 1 percent of the entire body, and intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs, was not required for treatment. CONCLUSION OF LAW For the entire rating period, the criteria for an evaluation in excess of 10 percent for tinea pedis with maceration and pruritus with ingrown toenails has not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.71a, Diagnostic Codes 5279, 7806, 7813 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant 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. Id. VA has met its duty to notify and assist the Veteran in this case. A September 2007 letter addressed the Veteran's appeal for an increased rating, and provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). With regard to the duty to assist, the Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, VA treatment records, and the Veteran's statements. In addition, the Veteran was afforded VA examinations in September 2007. The Board finds that the VA examination was adequate for rating purposes because it was performed by a medical professional, was based on the Veteran's history and symptomatology, and was based on a thorough examination of the Veteran. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). Importantly, the Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Therefore, the Board finds that there is no reason to believe that any possible outstanding records would contain information relating to the Veteran's claim. Disability Rating Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2012). Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability. 38 C.F.R. § 4.14 (2012). However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The United States Court of Appeals for Veterans Claims (Court or CAVC) has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered staged ratings, pursuant to Hart, but finds the 10 percent rating assigned appropriate for the entire rating period. In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Increased Rating Analysis The Veteran was originally granted a non-compensable rating for service connection for tinea pedis in a July 2003 rating decision. In August 2007 the Veteran filed a claim for ingrown toenails. In a March 2008 rating decision, the RO recharacterized the original tinea pedis issue to include ingrown toenails, and continued the assignment of a non-compensable rating. In a December 2008 rating decision, the RO granted a 10 percent evaluation for tinea pedis and ingrown toenails, effective from August 8, 2007, the date of the claim for an increased rating. The Veteran has reported that he developed ingrown toenails in service and has developed bilateral, intermittent foot pain (approximately once a week) because of the ingrown toenails. The Veteran reports that the ingrown toenails affect his ability to walk, stand for long periods of time, and work. He also stated having "jungle rot" which cause his feet to crack and bleed. The Veteran reported having used Lotrimin, Tinactin, Erythromycin for paronychia, and Vicodin for pain. The Veteran underwent a VA examination in September 2007. The VA examiner conducted a review of the Veteran's electronic medical record. The Veteran had a history of dermatophytosis (tinea pedis) and ingrown toenails and reported getting an infection approximately once every four months. The Veteran reported using antifungal cream and sprays at bedtime and was told to refrain from wearing tight shoes. A physical examination of the feet showed that the Veteran had scale and erythema over the plantar, lateral and medial aspects of both feet consistent with dermatyphosis. The examiner did not report paronychia and no discharge was present. In the September 2007 VA examination, the examiner noted that the Veteran developed intermittent foot pain when he walks due to the ingrown nails. The Veteran was prescribed Vicodin for pain and erythromycin for paromychia. During the examination, the physician found that the bilateral, first toenails were ingrown. Additionally, the September 2007 VA examination did not reveal any evidence of significant scarring or other abnormalities on examination of the skin and appendages. The Veteran's disability is shown by medical evidence to affect only 1 percent of the entire body and 0 percent of exposed areas. Although the Veteran reported using an antifungal spray and was considered for treatment with Lotrimin cream, systemic therapy such as corticosteroids or other immunosuppressive drugs were not required for treatment. The Veteran's tinea pedis and ingrown toenails of the bilateral great toes are currently rated pursuant to the provisions of Diagnostic Code 7813-5279. 38 C.F.R. § 4.71a, 4.118 (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Under Diagnostic Code 5279, 10 percent evaluation is assigned for metatarsalgia which is unilateral or bilateral. 38 C.F.R. § 4.71a, Diagnostic Code 5279. A specific diagnostic code does not exist which sets forth criteria for assigning disability evaluations for ingrown toenails. When an unlisted condition is encountered, it is permissible to rate that condition under a closely related disability as to which not only the functions affected, but the anatomical localization and symptomatology, are closely analogous. See 38 C.F.R. § 4.20 (2012). When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" by using the first two digits of that part of the rating schedule which most closely identifies the part, or system, of the body involved and adding "99" for the unlisted condition. See 38 C.F.R. § 4.27. In this case, the Board finds that the Veteran's disability is rating as analogous to metatarsalgia under Diagnostic Code 5279. The Board finds that a higher rating is not available for the disability under Diagnostic Code 5279 because a 10 percent evaluation is the maximum rating available under Diagnostic Code 5279. The Board does not find that the application of DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain) is warranted for this disability, as Diagnostic Code 5279 is not predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App 7, 11 (1996) (holding that consideration of 38 C.F.R. §§ 4.40 and 4.45 is not applicable to a disability rated under that a Diagnostic Code that is not predicated on loss of range of motion). Turning to other possible relevant codes, the Board finds that there is no clinical evidence or assertion on the part of the Veteran that there is acquired flat foot or pes planus (Diagnostic Code 5276), bilateral weak foot characterized by musculature atrophy, disturbed circulation and weakness (Diagnostic Code 5277), acquired claw foot or pes cavus (Diagnostic Code 5278), hallux valgus (Diagnostic Code 5280), unilateral hallux rigidus (Diagnostic Code 5281), hammer toe (Diagnostic Code 5282), malunion or nonunion of the tarsal or metatarsal bones (Diagnostic Code 5283), or residuals of other foot injuries (Diagnostic Code 5284). Next, the Board finds that for the entire rating period, the Veteran's tinea pedis, evaluated under Diagnostic Code 7813, has affected less than 1 percent of his entire body, and intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs were not required for treatment. As such, the Board finds that a higher evaluation in excess of 10 percent is not warranted. Diagnostic Code 7813 provides ratings for dermatophytosis (or ringworm) in various locations on the body, including the body (tinea corporis), the head (tinea capitis), the feet (tinea pedis), the beard (tinea barbae), the nails (tinea unguium), and the inguinal area (tinea cruris). Diagnostic Code 7813 provides that dermatophytosis is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813 (2012). Diagnostic Code 7806 provides ratings for dermatitis or eczema. Dermatitis or eczema is to be rated under either the criteria under Diagnostic Code 7806 or to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806 (2012). Diagnostic Code 7806 states that dermatitis or eczema that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy is required during the past 12-month period, is rated 0 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7806. Dermatitis or eczema that involves 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, is rated 10 percent disabling. Id. Dermatitis or eczema that involves 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, is rated 30 percent disabling. Id. Dermatitis or eczema that involves 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, is rated 60 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7806. During the September 2007 VA examination, the Veteran stated that he used Lotrimin (antifungal cream) and Tinactin at bedtime; however, no systemic therapy such as corticosteroids or other immunosuppressive drugs were noted as required treatment. The September 2007 VA examiner reported that the total body surface area involved by tinea pedis was less than 1 percent. As such, the Board finds that the medical evidence of record does not demonstrate that the Veteran's tinea pedis would warrant the next highest rating (30 percent rating) under Diagnostic Code 7806 as his condition does not involves 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. For these reasons, the Board finds that the criteria for a rating in excess of 10 percent under Diagnostic Code 7806 have not been met. In reaching the above conclusion, the Board has not overlooked the Veteran's statements in support of his claim. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran has reported that his feet often crack and bleed and the ingrown nails disrupt his ability to walk and work. The Board finds that the Veteran is competent to provide such testimony, and the Board finds that the Veteran's statements are credible. The Veteran's statements have been considered in evaluating his assigned rating. The Board finds, however, that with respect to the Rating Schedule, where the criteria set forth therein require medical expertise, the objective medical findings and opinions provided by the Veteran's treatment reports and his VA examination reports have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for tinea pedis with maceration and pruritus and ingrown toenails. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis, the Board finds that all the symptomatology and impairment caused by the Veteran's tinea pedis with maceration and pruritus and ingrown toenails are contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. A comparison between the level of severity and symptomatology of the Veteran's disabilities as discussed above, with the established criteria found in the rating schedule shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. The Veteran has described pain in relation to the ingrown toenail which is contemplated in the rating criteria for metatarsalgia. He has reported that the skin condition of the feet results in cracking and bleeding and requires the use of over the counter medications, but not corticosteroids or other immunosuppressive drugs. The probative VA examination report indicates the percent of the body involving the skin condition and adequately described the condition of the feet. Thus the Veteran's symptoms and complaints are fully contemplated by the assigned diagnostic criteria. In the absence of exceptional factors associated with an acquired psychiatric disorder, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In the August 2010 substantive appeal (VA Form 9), the Veteran asserted that he was unable to work due to the disability of the feet. The April 2012 VA examination report regarding a claim for service connection for post traumatic stress disorder shows that the Veteran reported that he was currently self employed as a scrap metal dealer. The Board finds that a TDIU claim is not raised by the record. ORDER For the entire rating period, an evaluation in excess of 10 percent for tinea pedis with maceration and pruritus and ingrown toenails of the bilateral great toes, is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs