Citation Nr: 1335470 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 12-03 368 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Whether new and material evidence has been received to reopen the claim for service connection for bilateral pes planus. 2. Entitlement to a compensable rating for bilateral onychomycosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Y. Curtis, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1998 to August 2002. This matter is before the Board of Veterans'Appeals (Board) on appeal of a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which denied the Veteran's claim to reopen a claim for service connection for pes planus and denied a compensable rating for onychomycosis. FINDINGS OF FACT 1. In a July 2004 rating decision, the RO denied service connection for bilateral pes planus. The Veteran did not timely appeal the decision, and it is now final. 2. The additional evidence presented since the rating decision in July 2004 is not new and material; it does not relate to any unestablished fact necessary to substantiate the claim for service connection for bilateral pes planus, and it does not raise a reasonable possibility of substantiating the claim. 3. The Veteran's bilateral onychomycosis affects an area that is less than 5 percent of the total and exposed body areas; the use of intermittent systemic therapy is not shown. CONCLUSIONS OF LAW 1. The criteria for reopening the Veteran's claim for service connection for bilateral pes planus have not been met. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156(a) (2013). 2. The criteria for a compensable rating for bilateral onychomycosis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.118, Diagnostic Codes (DC) 7800-7806, 7820 (2013) The Veterans Claim Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. An April 2010 letter satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a) (West 2002); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b)(1) (2012). This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The notification also informed the Veteran of the evidence and information necessary to reopen the claim for service connection for onychomycosis, including the basis on which the prior claim was denied. Kent v. Nicholson, 20 Vet. App. 1 (2006). The claim was subsequently readjudicated, most recently in an August 2012 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The Veteran's service treatment records and VA treatment records have been obtained; he did not identify any private treatment records pertinent to the appeal. 38 U.S.C.A. § 5103A (West 2002), 38 C.F.R. § 3.159 (2013). The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2) (2013). A VA examination was provided in April 2010. The VA examiner conducted a thorough physical examination and described the current severity of the Veteran's onychomycosis in sufficient detail so that the Board's decision is an informed determination. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Claim for Reopening The Veteran seeks to reopen a previously denied claim of service connection for bilateral pes planus. Rating actions from which an appeal is not timely perfected become final one year following notice of the adverse decision to the Veteran. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103. However, if new and material evidence is presented, the claim shall be reopened. 38 U.S.C.A. § 5108 Evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence, which, by itself or when considered with pervious evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is presumed. 38 C.F.R. § 3.156(a). In a July 2004 rating decision, the RO denied the Veteran's claim for service connection for bilateral pes planus because there was no evidence of a current disability. The evidence of record at the time of the July 2004 rating decision consisted of service treatment records and a VA exam. The Veteran did not submit a notice of disagreement and the rating decision became final. 38 C.F.R. § 20.1103. In April 2010, the Veteran filed an application to reopen his claim for service connection. In a statement received April 2010, the Veteran reported that he was diagnosed with severe flat feet and continues to experience problems with his feet. The Veteran did not submit medical evidence in support of his claim; however, the RO reviewed VA medical records from January 2010 to June 2012. The VA medical records did not contain a diagnosis of bilateral pes planus. Additionally, an April 2010 VA exam for a separate foot disability noted that there is no evidence of pes planus. Since the lack of evidence regarding a current diagnosis of pes planus was the basis for the denial of the claim in the July 2004 rating decision, any new evidence must relate to this unestablished fact and/or at least trigger the duty to assist by providing a medical opinion. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). While the Veteran reports symptoms of painful feet, the record does not contain any competent evidence of a current bilateral pes planus disability. No new and material evidence has been submitted and reopening the claim is not warranted. 38 U.S.C.A. § 5108. II. Principles of Increased Rating Claims Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of the two disability evaluations shall be applied, the higher is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). The Veteran's bilateral onychomycosis is rated as noncompensable under Diagnostic Code 7820, which directs that the condition be rated under the criteria for scars (Diagnostic Codes 7800, 7801, 7802, 7803, 7804, or 7805), or as dermatitis (Diagnostic Code 7806), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7820. As there is no evidence that the Veteran's bilateral onychomycosis results in scars, Diagnostic Code 7806 more closely contemplates the existing condition. Diagnostic Code 7806 assigns a noncompensable rating when the skin condition covers less than 5 percent of the entire body or exposed areas, and requires no more than topical therapy required during the past 12-month period. A 10 percent rating is assigned when the skin condition covers at least 5 percent, but less than 20 percent of the entire body or exposed; or requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12-month period. Higher evaluations are available for more severe manifestations. 38 C.F.R. § 4.118, Diagnostic Code 7806. III. Facts and Analysis Upon VA examination in April 2010, the Veteran reported that his toenails were cutting into his feet and causing pain. The examiner noted that all five toenails on both feet had evidence of fungal infection. The first and second toenails of the right foot were completely yellow, thick, and deformed. Although the Veteran reported experiencing pain due to onychomycosis, the examiner found that his pain was due to ingrown toenails. The examiner explained that ingrown toenails are a common problem and onychomycosis does not cause it. The Veteran was diagnosed with onychomycosis on all ten toenails. VA treatment records dated January 2010 indicate the Veteran was prescribed an antifungal medication to treat his discolored toenails. The Veteran also complained of ongoing painful hallux toenails. In September 2011, the Veteran was diagnosed with bilateral, incurvated hallux toenails with evidence of mycosis. Surgical removal of both incurvated hallux toenails was recommended. In September 2011, the right hallux toenail was removed and in October 2011 the left hallux toenail was removed, without residuals. Following the procedure, the Veteran reported that he no longer experienced painful toenails. An increased rating would only be warranted if the Veteran's onychomycosis covered at least 5 percent of his body, if it covered 5 percent of his exposed area, or if it required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. 38 C.F.R. § 4.118, Diagnostic Code 7806. The Veteran's onychomycosis meets none of these criteria. It has not been shown that onychomycosis affected an area that was at least 5 percent of the exposed areas or entire body, or that he required systemic therapy. Both the VA examination and VA treatment records indicate that the Veteran's onychomycosis is limited to his toenails. The Veteran received antifungal cream to treat his onychomycosis, but there is no evidence that he required corticosteroids or other immunosuppressive drugs. Although the Veteran underwent surgery to remove his bilateral hallux toenails, the evidence of record indicates that the surgery was performed to treat his ingrown toenails rather than his onychomycosis. The VA examiner reported that the Veteran's ingrown toenails were not related to his onychomycosis; and VA treatment records indicate that the surgical removal of both hallux toenails was meant to eliminate the pain resulting from the Veteran's ingrown toenails. Due consideration has been given to Hart v. Mansfield, 21 Vet. App. 505 (2007); however, a higher evaluation is not warranted for any portion of the time period under consideration. The preponderance of the evidence is against the claim for a compensable rating for bilateral onychomycosis; there is no doubt to be resolved; and a compensable rating for the Veteran's onychomycosis is not warranted. Extraschedular Consideration The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. If the criteria reasonably describe a disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Veteran's service-connected onychomycosis is primarily manifested by deformed toenails that affect a small portion of his total body area. The Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation for the service-connected onychomycosis is adequate, and referral is not required. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). ORDER New and material evidence has not been submitted to reopen a claim for service connection for bilateral pes planus, and reopening the claim is denied. Entitlement to a compensable rating for bilateral onychomycosis is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs