Citation Nr: 1316897	
Decision Date: 05/23/13    Archive Date: 05/31/13

DOCKET NO.  09-40 072	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma



THE ISSUE

Entitlement to an initial compensable rating for onychomycosis (claimed as right big toe infection and loss of toenail).



REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

J. Hager, Counsel



INTRODUCTION

The Veteran served on active duty from September 2002 to September 2007.

This matter comes before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma.  In that decision, the RO granted entitlement to service connection for onychomycosis and migraines and assigned a noncompensable (0 percent) ratings for each.  After it received new and material evidence within the one year appeal period, the RO readjudicated the claim, continuing the noncompensable ratings.  The Veteran timely appealed the assigned ratings.  After the RO increased the rating for migraines to 30 percent, the Veteran indicated in an October 2009 appeal status election form that she was satisfied as to the claim relating to the rating for migraines. That issue is therefore not before the Board.  See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless she indicates otherwise).

In May 2011, after notification of certification of the appeal, the RO received additional evidence in the form of a photograph of the Veteran's right foot including great right toe, which appears to have been taken in connection with the September 2010 VA examination, and forwarded this evidence to the Board.  Although this evidence does not appear to have been reviewed by the RO prior to its October 2010 supplemental statement of the case and was not accompanied by a waiver of initial RO consideration of RO review of this evidence, the photograph does not contain any information or reflect the existence of any additional symptoms that are not already shown by the evidence already in the claims file as discussed below.  As the evidence is therefore not pertinent to the appeal, a remand for initial RO review of this evidence is not required.  38 C.F.R. § 20.1304(c) (2012) (remand to RO required when pertinent evidence received without waiver of initial RO review). 



FINDING OF FACT

The Veteran's onychomycosis has caused removal of the right great toenail with exfoliation and crusting, hyperhidrosis, redness, and swelling, but no ulceration, disfigurement, tissue loss, induration, hypopigmentation, abnormal texture, or limitation of motion, affecting less than 5 percent of the entire body and exposed areas and requiring only topical treatment or oral antifungal medication.


CONCLUSION OF LAW

The criteria for an initial compensable rating for onychomycosis (claimed as right big toe infection and loss of toenail) have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.27, 4.118, Diagnostic Codes (DCs) 7813-7806 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012).  As noted above, the claim for a higher initial rating for onychomycosis arises from the Veteran's disagreement with rating assigned in connection with the grant of service connection for this disability.  The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003).  The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating or effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002).  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  Consequently, further discussion of the VCAA's notification requirements with regard to this claim unnecessary.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records.  The Veteran was also afforded multiple VA and VA-authorized examinations.  For the reasons indicated below, these examinations were adequate because they was based on consideration of the Veteran's prior medical history and examinations and also described the disability in sufficient detail to allow the Board to make a fully informed evaluation.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007).

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claim for an initial compensable rating for onychomycosis is thus ready to be considered on the merits.

Analysis

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful 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 to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged.  Fenderson v. West, 12 Vet. App. 119 (1999).  Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, however, as shown below, the evidence warrants a uniform noncompensable rating.

The Veteran's onychomycosis is currently rated by analogy under 38 C.F.R. § 4.118, DCs 7813-7806, applicable to dermatophytosis and dermatitis, respectively.  38 C.F.R. § 4.20.  Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned.  38 C.F.R. § 4.27.  Pursuant to DC 7813, dermatophytosis is to be rated under the diagnostic code for disfiguring scars to the head, face or neck (DC 7800), other scars (DC 7801-7805) or dermatitis (DC 7806), depending upon the predominant disability.  As the Veteran's skin disability does not involve the head, face, or neck and she does not have scars, it is rated by analogy as dermatitis under DC 7806.

Under Diagnostic Code 7806, a noncompensable rating is warranted if less than five percent of the entire body or less than five percent of exposed areas are affected, and; no more than topical therapy was required during the past twelve-month period.

A 10 percent rating is warranted if at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas are affected, or; if intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past twelve-month period.

A 30 percent rating is warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; if systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past twelve-month period.

A 60 percent rating is warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; if constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past twelve-month period.

For the following reasons, the evidence reflects that symptoms of the Veteran's onychomycosis do not more nearly approximate the criteria for a compensable rating.

May 2007 treatment notes of Sunset Community Health shows a toenail culture was ordered with the culture showing the fungus was of the trichopyton series and treatment was Lamisil for 12 weeks.  On the June 2008 VA-authorized examination, the Veteran noted only exudation and crusting, which occurred constantly, and not ulcer formation, itching or shedding.  The only treatment she indicated in the previous 12 months were unknown fungus medications which she characterized as a systemic fungus medication.  She had not undergone UVB, intensive light therapy, PUVA or electron beam therapy and reported that she did not experience any functional impairment from her onychomycosis.  Examination showed onychomycosis, with no scars, located on the right great toe.  There was exfoliation and crusting, but no ulceration, disfigurement, tissue loss, induration, inflexibility, hypo or hyperpigmentation, abnormal texture, or limitation of motion.  The skin lesion affected 0 percent of the exposed area and .05 percent of the entire body.  The skin lesions were not associated with systemic disease.

On the August 2009 VA skin examination, the Veteran indicated that she soaked the affected area in Epson salts and applied an antifungal cream and at one point was treated with a full course of oral Lamisil.  The Veteran indicated that she did have hyperhidrosis, i.e., sweating.  She was told to change her socks several times per day and to refrain from wearing her boots except when needed.  She was also told that she could wear tennis shoe but indicated that she found them uncomfortable and wore only flip flops.  She described fissuring, redness, and peeling of the toewebs, which suggested fungus at some point, but the examiner noted there was no evidence of fungus at that time.  The examiner described the findings a being of an ingrown toenail that needed surgical treatment and was totally curable.  The Veteran was using a topical antifungal.  The percentage of exposed areas affected was 0 percent and the percentage of the entire body affected was less than 1 percent.  There was no scarring and/or disfigurement, ulceration, exfoliation, crusting, acne or chloracne, disfiguring skin conditions of the head, face, or neck.  The examiner indicated that the onychomycosis did affect the Veteran's occupational functioning because she was uncomfortable wearing closed toe shoes.

A September 2009 VA treatment note indicated that the Veteran complained of a painful, red, swollen ingrown right great toenail.  An October 2009 VA treatment note indicated worsening pain, but no swelling, redness, or discharge.  A November 2009 VA treatment note indicated that the nail was thickened and becoming a pincher nail with no erythema, swelling, or drainage.  Toenail ablation was recommended, and later that month was performed.  Post operatively, the Veteran was noted to be doing fine and ambulating without difficulty.  A November 2009 VA treatment note indicated the Veteran was doing very well, but a note later that month indicated the Veteran had stepped on the toe and experienced pain and bleeding.  A January 2010 VA treatment note indicated there was white skin surrounding the nail bed indicating overhydration, with the nail margins stuck down, no eschar, clean wound, no new skin growth, no erythema or swelling, and the rest of the toe was normal.  The assessment was that the Veteran was doing very well.  A subsequent January 2010 note indicated "almost healed," with no follow up appointment necessary. 

On the September 2010 VA examination, the Veteran indicated that he toenail was removed in November 2009 with some stinging in the corner of the matrix and her last care was in December 2009 with improvement in the condition postoperatively.  The examiner noted that the type of treatment in past was topical and was neither a corticosteroid nor an immunosuppressive.  There was no other allegation of a skin condition affecting the right great toe.  On examination, the nail was surgically absent, the residual nail bed was present with normal appearing non tender skin.  There was slight cosmetic deformity with medial order oversown onto the medical nail bed and a minimally tender lateral corner of the residual matrix.  The diagnosis was status post excision of right great toe nail with no residual signs of onychomycosis.

In her substantive appeal, the Veteran noted that, while the evidence showed no more than topical treatment was needed, the August 2009 VA examiner indicated that she would need surgery and that the fungus would always come back.  She noted that she could not undergo treatment during the portions of the appeal period when she was pregnant and that she was prescribed Perbinafine for three months.  She noted that although the surgery might help, her primary care physician had told her that the fungus may be continuous because of the shape of the toenail and how it was growing.

The above evidence reflects that the Veteran's symptoms have not more nearly approximated the criteria for a 10 percent rating under DC 7806.  The area affected was far less than between 5 and 20 percent of either the entire body or the area affected.  Moreover, although the Veteran characterized one of her medications as a "systemic fungus medication," the evidence did not show that she was undergoing systemic therapy such as corticosteroids or other immunosuppressive drugs.  Rather, the June 2008 examiner indicated that the skin lesions were not associated with systemic disease, the medications prescribed were antifungal in nature, and the September 2010 VA examiner indicated that the type of treatment in past was topical and was neither a corticosteroid nor an immunosuppressive.  As to the Veteran's statements, she is competent to report her medical treatment and statements of VA examiners and her primary care physician.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  Moreover, her statements in this regard are credible, as the evidence reflects that she did in fact need surgery and there is a possibility that the ingrown toenail and symptoms will recur.  However, none of the symptoms described by the Veteran or in the evidence, including pain and swelling, warrant a compensable rating under DC 7806 or any other potentially applicable diagnostic code.

As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  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.  If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms.  If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. 

The discussion above reflects that the Veteran had many symptoms, including pain, swelling, and redness, that are not contemplated by the applicable rating criteria.  Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is required.  As indicated, the Veteran underwent toenail ablation surgery and the August 2009 VA examiner indicated that the onychomycosis did affect the Veteran's occupational functioning because she was uncomfortable wearing closed toe shoes.  The Board finds, however, that neither the surgery nor the inability to wear closed toe shoes reflect marked interference with employment or frequent hospitalization.  "Marked interference"  is not specifically defined in the regulation, but as neither the Veteran nor the VA examiner indicated how the inability to wear closed toe shoes interfered with her employment, the Board finds that the there has not been marked interference with employment in the circumstances of this case.  Moreover, one surgery does not equate to frequent hospitalization. Therefore, referral for consideration of an extraschedular rating for onychomycosis is not warranted.  38 C.F.R. § 3.321(b)(1).

For the foregoing reasons, the preponderance of the evidence reflects that the Veteran's symptoms have not more nearly approximated the criteria for a compensable percent rating at any time during the appeal period.  The benefit-of-the-doubt doctrine is therefore not for application, and the claim for an initial compensable rating for onychomycosis must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009).


ORDER

Entitlement to an initial compensable rating for onychomycosis (claimed as right big toe infection and loss of toenail) is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs