Citation Nr: 1330820 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 08-14 687 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for tinea pedis with onychomycosis of both feet. 2. Entitlement to an increased (compensable) rating for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas H. O'Shay, Senior Counsel INTRODUCTION The Veteran had active service from August 1986 to August 1990 and February 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction over the case was transferred to the RO in Portland, Oregon, in March 2010. The Veteran testified at a Board videoconference hearing from the Portland RO in February 2011. The Board remanded this case in March 2011. The issue of entitlement to a compensable evaluation for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's tinea pedis with onychomycosis does not involve exposed areas, and is limited to no more than seven percent of the entire body; the disorders do not require systemic therapy, do not involve scarring, and do not involve damage to the underlying soft tissue. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for tinea pedis with onychomycosis have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.71a, Diagnostic Code 7806 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DCs]," and that the range of disability applied may be between 0 percent and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment." Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The record shows that 38 U.S.C.A. § 5103(a)-compliant notice was sent in September 2006 and April 2010. The Board finds that the correspondences provided the Veteran with the due process notice to which he is entitled. With respect to VA's duty to assist the Veteran, the Board notes that pertinent records from all relevant sources identified by him, and for which he authorized VA to request, were obtained by the RO or provided by the Veteran himself. 38 U.S.C.A. § 5103A. The record, including the Veteran's Virtual VA folder, contains VA treatment records for 2005 through 2012. The record also reflects that the Veteran was afforded several VA or fee basis examinations in connection with his claim, including in November 2006, April 2010 and June 2011. The examinations included the pertinent findings for evaluating the severity of the disorder under the appropriate diagnostic code. The Board finds that the examinations are adequate for the purpose of adjudicating the claim on appeal, and the Veteran does not contend otherwise. In sum, the facts relevant to this appeal have been properly developed, and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A, or 38 C.F.R. § 3.159. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claim. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Disability Rating Law and Regulations In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected skin disorder. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (2013). The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. See 38 C.F.R. § 4.3. 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), the Court held that consideration of staged ratings was appropriate in claims for an increased rating when the facts reflect distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart, 21 Vet. App. at 509-10. Factual background Service connection for tinea pedis with onychomycosis was granted in a March 2004 rating decision; the disorder was assigned a 10 percent evaluation. This evaluation has remained in effect since that time. On file are VA treatment records covering the period from 2005 through 2012. The records document treatment for pain in the Veteran's right foot that was associated by his clinicians with a non-service connected charcot fracture, which was also manifested by a deformity. The records also document treatment for diabetes with associated abnormal sensation in the feet, and hallux and hammertoe deformities affecting each foot. The treatment records show that the Veteran received care for hyperkeratosis on the heel of the right foot, as well as for onychomycosis, and reflect that he was prescribed medicated creams for fungal infections of the feet. Physical examination showed that the skin and nails of the feet were intact. A March 2010 entry records the Veteran's concern that his tinea rash and onychomycosis could be causing his foot pain. The entry contains the physician's response to this concern, namely that he could not fathom why the Veteran would think that the rash would contribute to his foot pain syndrome. More recent records document the presence of severe pes planus affecting both feet, with plantar fasciitis; the Veteran was issued shoe inserts to alleviate the foot pain, without any reference to tinea pedis or onychomycosis. Records for 2011 show he reported trouble with trimming his toenails. The Veteran attended a VA fee basis examination in November 2006, at which time the examiner noted that the Veteran had diabetes, with an associated charcot deformity. The Veteran's current complaints included ulcer formation, itching, shedding, and crusting; he reported that the symptoms were constant. He reported a persistent rash, and explained that he used only topical medications. The examiner noted that the affected areas were not exposed. Physical examination showed the presence of tinea pedis and onychomycosis. The onychomycosis was limited to the toenails, and was manifested by exfoliation, inflexibility in an area of less than 6 square inches, hyperpigmentation in an area of less than 6 square inches, and abnormal texture in an area of less than 6 square inches. There was no ulceration, crusting, tissue loss, induration, hypopigmentation or limitation of motion. The examiner estimated that only one percent of the Veteran's total surface area was affected, and explained that any skin lesions were associated with diabetes. As for the tinea pedis, the examiner noted the presence of exfoliation, crusting, and abnormal texture in an area of less than 6 square inches. There was no ulceration, tissue loss, induration, inflexibility, hypo or hyperpigmentation or limitation of motion. The examiner estimated that the tinea pedis affected five percent of the total surface area. The Veteran attended a VA fee basis examination in April 2010. The examiner noted that the Veteran had plantar fasciitis and pes planus. He reported using oral treatments for his fungal infections in the past, but indicated that he currently only used topical treatment; the examiner noted that the Veteran's topical treatments were not immunosuppressive in nature. His complaints included foot pain and itching that interfered with his daily living and ability to sleep. He also complained of itching, redness and pain. He reported developing lesions along the feet, usually related to the itching, which result in blister formation, and then excoriation of the area once the blister pops. Physical examination disclosed the presence of erythema in the feet, with scaling. There were no open wounds. There was severe onychomycosis affecting all the toes, and the toes were deformed and discolored. The examiner noted that the Veteran's foot pain was impacting his ability to perform activities of daily living. During his February 2011 Board hearing, the Veteran testified that he experienced constant irritation and itching in both feet, for which he used a cream. He explained that he had to change his socks frequently because of sweating, and that his symptoms worsened in certain seasons. He testified that his symptoms also included cracking and blistering of the skin of his feet, as well as yellow toenails. He explained that he used medication for his toenails, and that the toenails were painful when cut. He noted that he was given inserts for his flat feet, and stated that his foot pain originated not only from flat feet, but from fungus. He explained that his physician was unable to determine if the pain was coming from the fungus or the flat feet. The Veteran was examined by VA in June 2011. He complained of discolored nails and itchy feet, as well as blisters. He explained that he used a topical corticosteroid. The examiner noted that the Veteran's skin disorders of the feet affected no exposed areas, and affected less than five percent of the total body. The examiner noted the presence of flat, erythmatous patches on the soles of the feet, with no blisters. There were thickened discolored nails without evidence of secondary infection. The examiner concluded that the Veteran's foot pain was more likely than not related to the pes planus. Analysis The Veteran's tinea pedis with onychomycosis is currently evaluated as 10 percent disabling under 38 C.F.R. § 4.118, Diagnostic Code 7806. Pursuant to that diagnostic code, a noncompensable rating is warranted where the skin disorder affects less than 5 percent of the entire body or less than 5 percent of exposed areas; and no more than topical therapy is required in the past 12-month period. A 10 percent evaluation requires 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 evaluation is warranted where 20 to 40 percent of the entire body is affected, 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. 38 C.F.R. § 4.118, Diagnostic Code 7806. That diagnostic code also allows for rating a disorder based on disfigurement of the head, face, or neck; or based on scars, depending on the predominant disability. The record shows that the Veteran's tinea pedis and onychomycosis does not affect an exposed area, and are limited to the feet. The service-connected skin disorder affects less than seven percent of the entire body, as described at the November 2006, April 2010 and June 2011 examinations; the November 2006 examiner described the total surface area involved as seven percent of the entire body, and subsequent examiners estimated that only five percent of the entire body was affected. As explained above, to warrant an increased rating on the basis of the percentage of the body affected by the skin disorder, there must be involvement of at least 20 percent of the entire body, or at least 20 percent of exposed areas. The record shows that the Veteran uses medication for the control of his tinea pedis and onychomycosis, but that the treatment is topical in nature, only. Although the Veteran reported on one examination that he at one point used oral medication, he did not indicate that such a medication was used at any point since he filed the current claim, and the treatment records since 2005 do not reference any systemic therapy. The Board acknowledges the representative's assertion that the Veteran's use of medicated cream on a topical basis should be considered systemic therapy, but points out that topical use, by its nature, can not be classified as such. The Board also points out that Diagnostic Code 7806 itself distinguishes between topical use and systemic therapy, in that a noncompensable evaluation is warranted where there only topical therapy is required, whereas a compensable rating requires a different type of therapy, namely systemic. Adopting the position urged by the representative would render the criteria for a noncompensable rating superfluous. In short, the Veteran's tinea pedis and onychomycosis do not involve exposed areas, affect less than seven percent of the entire body, and require no more than topical therapy. An increased rating under the provisions of Diagnostic Code 7806 clearly is not warranted. The Board points out that Diagnostic Code 7800, pertaining to disfigurement of the head, face, or neck is clearly inapposite to this case. As for the diagnostic codes pertaining to rating scars, Diagnostic Codes 7801 through 7805 provide for various ratings based on the area involved. Only Diagnostic Codes 7801 and 7804 provide for a rating higher than 10 percent. Under Diagnostic Code 7801, which pertains to burn scars that are deep and nonlinear, a 20 percent rating (or higher) rating requires involvement of an area or areas encompassing at least 12 square inches. Under Diagnostic Code 7804, which pertains to scars which are unstable (i.e., involving frequent loss of covering of skin over a scar) or painful, a 20 percent rating or higher requires at least three scars that are unstable or painful. Turning first to Diagnostic Code 7801, even assuming that the skin disorders affecting the Veteran's feet encompass an area of at least 12 square inches (although the November 2006 examiner suggested they do not), the Board points out that the Veteran's tinea pedis with onychomycosis is not manifested by the type of symptoms contemplated by that diagnostic code. That code involves scarring, which is not present in the Veteran's disability. Moreover, the type of scarring contemplated is that which is associated with underlying soft tissue damage. None of the medical evidence suggests that the service-connected skin disorder involves damage to the underlying skin, or symptoms analogous to scarring. The Board consequently finds that the disability picture presented by the skin disorder is not contemplated by the criteria of Diagnostic Code 7801. As for Diagnostic Code 7804, the Board also finds that the skin disorder is not manifested by symptoms which are closely analogous enough to those contemplated by the criteria for that diagnostic code. The Board points out that the only supportive opinion suggesting the Veteran's foot pain is associated with the service-connected skin disorder is the opinion of the Veteran himself. Given the number of pathologies affecting his feet, only one of which (namely, the skin disorder) is service-connected, the Board finds that an opinion as to whether any pain is related to the skin disorder is beyond the capability of a layperson to address. Moreover, his own treating clinician clearly does not believe that the foot pain is related to the skin disorder. The Board notes that the Veteran does report blistering. The November 2006 examiner suggested that any lesions were actually secondary to diabetes. In any event, examinations of the skin on the feet are silent for any mention of scarring, and the locations of the blisters are not specified by the Veteran. The Board finds that the blistering reported by the Veteran is not analogous to an unstable scar, and in the absence of any indication of the location of the blisters (or whether they appear in random locations), there is no basis for concluding that any such "instability" in the skin affects an area or areas equivalent to 3 or more scars. The Board again notes that the Veteran experiences pain in his feet that he believes is related to the fungal infections. During his testimony he asserted that his treating clinician was unsure if the pain was related to the fungal infections, or to the myriad of nonservice-connected orthopedic and neurologic pathologies present in the foot. The Board points out that virtually every reference to foot pain in the Veteran's treatment records is silent for any reference to the tinea pedis or onychomycosis. For those few entries that mention the fungal infections, it was the Veteran himself who raised the question of a relationship to foot pain. On those occasions, the clinicians found it hard to "fathom" why the Veteran would think there was such a relationship, which to the Board suggests that clinicians do not believe any such relationship exists. Moreover, the June 2011 examiner specifically considered whether the pain was related to the service-connected fungal infections, but concluded that there was no such relationship. As explained previously, the Board finds that the identification of the etiology of foot pain where multiple pathologies exist is clearly outside the ability of a layperson to assess. In any event, the Board finds that the probative value of the examiner's opinions, as they are based on medical education, training and experience, clearly outweighs that of the Veteran's lay opinion. The Board acknowledges the Veteran's contention that his toenails are painful while being cut. The Board finds that even if true, given the relatively infrequent circumstance that gives rise to that discomfort, it does not establish entitlement to a higher rating under any applicable diagnostic code. For the above reasons, the Board finds that the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5280 are not for application, and thus do not support a higher rating. That diagnostic code provides for a 10 percent rating for moderate foot injury, and higher ratings for moderately severe and severe foot injuries. The Veteran certainly does have multiple pathologies affecting both feet, including pes planus, charcot deformity, hallux deformities, and hammertoes, but service connection is only in effect for a fungal infection of the feet and toes, and not for any injury to the foot, or orthopedic or neurologic component to the fungal infection. The Board finds that the fungal infection is more appropriately rated under the diagnostic codes pertaining to disorders of the skin, as there is no competent or probative evidence that the service connected disorder affects more than the skin and toenails of the feet. In sum, the Board finds that the evidence does not support assignment of an evaluation in excess of 10 percent for tinea pedis with onychomycosis. The Board also finds that at no discrete period involved in this appeal did such entitlement arise. The claim is denied. 38 C.F.R. § 4.3. The Board notes that under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the Rating Schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto 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 to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The primary complaint of the Veteran relating to his service-connected foot disorder is that of foot pain. As already discussed, the competent evidence on file establishes that the foot pain is not associated in any manner with the tinea pedis or onychomycosis. The foot disorders are also manifested by complaints of itchiness, blistering, scaling and toenail discoloration and deformity. The current rating criteria do not specifically reference those symptoms. Instead, the criteria contemplate disability evaluation based on area involved, or the need for specific therapies. The criteria also specify, however, that the rating criteria pertaining to scars are applicable if they represent the dominant disability picture. Those diagnostic codes address symptoms including disfigurement, pain and instability. The Board consequently finds that the applicable diagnostic codes are not restricted to certain manifestations, but rather are broad enough to cover all manifestations, and in any event are certainly broad enough to encompass the specific manifestations claimed by the Veteran. Consequently, a comparison between the level of severity and symptomatology of the Veteran's assigned disability rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected tinea pedis with onychomycosis under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to a rating in excess of 10 percent for tinea pedis with onychomycosis of both feet is denied. REMAND The Veteran's voluminous VA treatment records contain a March 31, 2010, entry concerning an audiology consultation. The consultation apparently involved audiometric testing, but the clinician only described the resulting speech discrimination scores. As to the pure tone decibel loss demonstrated by the Veteran, the clinician indicated that "[a]udiogram [and] details may be viewed in CPRS under Vista Apps/Audiogram Display or Edit." Unfortunately, the audiogram details were never associated with either the physical claims file, or the Veteran's Virtual VA folder. Accordingly, this case is REMANDED for the following actions: 1. Obtain the full report of the Veteran's audiogram performed on March 31, 2010, at the VA Medical Center in Portland, Oregon. 2. Thereafter, readjudicate the remaining issue on appeal. If the benefit sought on appeal is not granted in full, issue a supplemental statement of the case, and provide the appellant and his representative an opportunity to respond. After the Veteran and his representative have been given an opportunity to respond to the supplemental statement of the case, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the RO/AMC. The Veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded to the RO/AMC. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs