Citation Nr: 1325591 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 10-06 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to a disability rating in excess of 10 percent for bilateral onychomycosis. REPRESENTATION Appellant represented by: Maryland Department of Veterans Affairs ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had active service from June 1984 to May 1999. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in March 2012, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. The separate issue of service connection for pseudofolliculitis barbae was also remanded by the Board in March 2012. In an October 2012 rating decision, service connection was granted. Therefore, this issue has been resolved and is not on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). FINDINGS OF FACT The Veteran's bilateral onychomycosis does not cover 20 to 40 percent of total or exposed body surface, and the Veteran does not use systemic therapy such as corticosteroids or other immunosuppressive drugs. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for bilateral onychomycosis have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7813 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (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. 2012)) redefined VA's duty to assist a claimant 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) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a 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, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in a September 2008 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for an increased evaluation, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The September 2008 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last readjudicated in October 2012. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA examination reports, and private treatment records. The Board notes that actions requested in the prior remand have been undertaken. In March 2012, a VA examination was conducted. Following the October 2012 supplemental statement of the case, the Veteran's representative submitted additional evidence and waived RO review of it. The representative did not argue that the March 2012 examination was insufficient. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his 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 was an active participant in the claims process by providing evidence and argument. Thus, he was 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 notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Veteran is seeking an evaluation in excess of 10 percent for bilateral onychomycosis. The Board has reviewed all of the evidence in the Veteran's claims file and electronic Virtual VA 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 Veteran 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 ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). 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 (2012); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2012); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2012); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2012). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994); see 38 C.F.R. § 4.2. 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 based on the facts found, a practice known as "staged" ratings. 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, also known as jock itch (tinea cruris). Diagnostic Code 7813 provides that dermatophysosis 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 7806 provides that a 10 percent rating is warranted for 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. A 30 percent rating is warranted for 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. A 60 percent rating is warranted for 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. 38 C.F.R. § 4.118. A July 2006 VA examination noted the Veteran used a topical cream for onychomycosis. On examination there was a thickening and discoloration and separation of the nail plates on the great toes, and there was scaling between the toes. The examiner diagnosed the Veteran with onychomycosis. The exposed surface area affected was zero percent and the body surface area affected was two percent. Records from a private pharmacy show that in July 2007 the Veteran filled a prescription for 30 Lamisil tablets that he was to take once a day. In August 2007 the Veteran underwent a VA examination. He reported that Lamisil was initially effective but that the onychomycosis never fully resolved and had relapsed. The onychomycosis had progressed to multiple toenails. The toenails were uncomfortable, thickened, friable, and had fallen off. There were no systemic symptoms. The examiner noted that the Veteran had started on Lamisil antifungal topical solution in 2004 and had used it since on a constant basis. On examination the nail of the first left toe was yellow, thickened, opacified, friable, dystrophic, mildly tender, and had no redness or discharge. The nails of the third and fifth left toes were yellow and slightly thickened. The nails of the first and fifth right toes were yellow, thickened, dystrophic, opacified, and mildly tender, and they had no redness or discharge. Walking was painful due to the toenails. The Veteran had to walk four hours per workday and had not lost time from work except for doctor appointments. He had not had to modify his work duties because of the symptoms. The diagnosis was onychomycosis affecting multiple toes. The Veteran wrote in a November 2007 statement that he had been taking Lamisil, which was systemic therapy, orally on a daily basis since the end of 2004. Private podiatry treatment notes from August 2008 indicate that all of the Veteran's toenails had discoloration. In September 2008 the Veteran had a VA examination at which it was noted that he had had persistent toenail fungus in both feet since around 2004. The Veteran was currently treated with oral Lamisil on a daily basis and was seen by a podiatrist who trimmed his toe nails. On examination there was fungal involvement on the tip of the toenails bilaterally. The big toenails, particularly on the left, were heavily involved. The Veteran wrote in December 2008 that he had been taking Lamisil since November 2005 and had taken it constantly since July 2007. Subsequent private podiatry treatment records indicate that he continued to take Lamisil. The Veteran had another VA examination in March 2012. It was noted that there had been an intermittent history of oral Lamisil therapy between 2005 and 2006 and in July 2007, April 2008, and August 2008. The Veteran was seen by a podiatrist every two months and was not using any topical medications. The skin symptoms were dystrophic, brittle toenails with associated erythematous scaly patches of the feet. There were no systemic symptoms. The Veteran had used Lamisil for greater than six weeks. The VA examiner noted that it was a systemic drug but that it was not a corticosteroid or an immunosuppressive. There were not any side effects from the Lamisil. An examination of the foot showed dystrophic, brittle toenails consistent with a diagnosis of onychomycosis of the bilateral great toes and fifth toes. There were erythematous scaly patches on the soles of the feet bilaterally that were consistent with tinea pedis. Five percent of the total body surface area was affected. The examiner diagnosed the Veteran with onychomycosis/tinea pedis. The Veteran currently has a 10 percent evaluation for onychomycosis. He does not qualify for a 30 percent evaluation, the next highest available under Diagnostic Code 7806 based on the total area affected, because the record does not show that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas were affected. See 38 C.F.R. § 4.118. At the March 2012 VA examination five percent of the total body surface area was affected and there was no indication that any exposed area was affected. In regards to an increased evaluation based on use of systemic therapy such as corticosteroids or other immunosuppressive drugs, the Veteran's representative has argued that Lamisil taken orally is a systemic therapy. Furthermore, while Lamisil taken orally may be considered a systemic therapy, there is no indication from the record, including the information on the drug submitted by the Veteran, that it is a corticosteroid or other immunosuppressive drug. Furthermore, the March 2012 VA examiner specifically noted that Lamisil is not a corticosteroid or immunosuppressive drug. Only systemic therapy such as a corticosteroid or immunosuppressive drug is contemplated by Diagnostic Code 7806. If the Diagnostic Code were intended to cover all systemic therapies, it would not include the qualifier "such as corticosteroids or other immunosuppressive drugs..." 38 C.F.R. § 4.118. While the Veteran's representative suggests that the Diagnostic Code does not limit the systemic therapies to only corticosteroids or other immunosuppressive drugs, interpreting Diagnostic Code 7806 to include all systemic therapies would abrogate the qualifying language. Therefore, the Board finds that all systemic therapies are not contemplated under Diagnostic Code 7806. See Roper v. Nicholson, 20 Vet. App. 173, 178 (2006) (holding that "the VA statutory and regulatory scheme 'should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error."). As oral Lamisil is not a type of corticosteroid or immunosuppressive drug, a higher evaluation based on the constant use of such is not warranted under Diagnostic Code 7806. See 38 C.F.R. § 4.118. In light of the holding in Hart, supra, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected bilateral onychomycosis, as the Court indicated can be done in this type of case. Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. The Board has also considered whether the Veteran's disability 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) (2012); 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 related to his bilateral onychomycosis. He has reported no time lost from work for this condition, the examination results indicate that the Veteran does not have systemic symptoms, and it was noted the medication he takes does not have any side effects. 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, since the preponderance of the evidence is against the claim for a higher rating for the Veteran's bilateral onychomycosis, 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 Entitlement to a disability rating higher than 10 percent for bilateral onychomycosis is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs