Citation Nr: 1337101 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 08-05 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE 1. Evaluation of tinea pedis and toenail onychomycosis, currently rated as noncompensable, prior to July 31, 2012. 2. Entitlement to a separate compensable evaluation for post surgical right great toe scar. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran had active service from July 1986 to July 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for tinea pedis and toenail onychomycosis, assigning a noncompensable rating, and from a December 2012 rating decision by the VA Appeals Management Center (AMC) that continued the noncompensable rating prior to July 31, 2012 and assigned a 10 percent disability rating effective July 31, 2012. After the RO increased the rating for tinea pedis and toenail onychomycosis to 10 percent disabling effective July 31, 2012, the Veteran's representative indicated in an October 2013 Informal Hearing Presentation that he was satisfied as to the assignment of a 10 percent disability rating effective July 31, 2012, and was only requesting the date entitlement arose to be granted effective April 15, 2008. Therefore, the only matter currently before the Board, in regard to this claim, is the date the Veteran's 10 percent disability rating arose. See AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). Further, the Board is aware that this appeal was remanded by the Board in July 2012. The remand requested that the RO obtain an examination opinion regarding the current severity of his service-connected tinea pedis and toenail onychomycosis. This development was completed. Accordingly, the Board finds that there has been substantial compliance with its previous remand and it may proceed to adjudication of this appeal. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals the documents in the file are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issues of degenerative joint disease of the toes and malunion or nonunion of tarsal or metatarsal bones in the great right toe have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. For the reasons below, the issue of a separate compensable evaluation for post surgical right great toe scar has been listed on the title page and 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. FINDINGS OF FACT Tinea pedis and toenail onychomycosis is manifested by at least 5 percent, but less than 20 percent of the entire body affected. CONCLUSION OF LAW The criteria for a disability rating of 10 percent for the service-connected tinea pedis and toenail onychomycosis is warranted prior to July 31, 2012. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.97, Diagnostic Codes 7813, 7806 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Assist and Notify The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). To the extent that the action taken herein below is favorable to the Veteran and is a full grant of the benefits sought, further discussion of VCAA is not required at this time. Legal Principles and 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). Separate ratings 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); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as indicated above, the RO has already assigned staged ratings for the Veteran's tinea pedis and toenail onychomycosis; hence, the Board must consider whether a staged rating was appropriate. As previously noted, only the non-compensable rating assigned prior to July 31, 2012, is under consideration. The Veteran contends that he is entitled to a 10 percent disability rating prior July 31, 2012 for his tinea pedis and toenail onychomycosis. He is currently rated under 38 C.F.R. § 4.118, DC 7813, applicable to dermatophytosis, including tinea pedis. 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 the Veteran's scar is addressed in the remand section for a separate evaluation, the tinea pedis and toenail onychomycosis is rated by analogy as dermatitis under DC 7806. The criteria for rating skin disabilities were revised, effective October 23, 2008. 73 Fed. Reg. 54,708 (Sept. 23, 2008). The announcement of the final regulation specifically states that the new criteria apply "to all applications for benefits received by VA on or after October 23, 2008" and that a Veteran rated under the skin criteria in effect prior to that date may request review under the revised criteria. The Veteran has not requested such review, and his claim was received prior to October 23, 2008. Regardless, the schedular criteria applicable in the instant case, 38 C.F.R. § 4.118, DC 7813 -7806 have remained unchanged. 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. For the following reasons, the evidence reflects that symptoms of the Veteran's tinea pedis and toenail onychomycosis more nearly approximate the criteria for a 10 percent disability rating for the entire period on appeal. The Veteran was afforded a VA examination in July 2006. Upon examination, the Veteran reported the left toenail was painful with extended pressure and the right toenail became ingrown periodically which had to be cut back to prevent recurrence. On physical examination, the examiner reported scaling on the soles and around the toes of the Veteran's feet. The right great toenail was very thickened and discolored and the left great toenail had mild discoloration and thickening of the distal nail. Both great toenails were also slightly tender to palpitation. The examiner rendered a diagnosis of bilateral great toe onychomycosis. A review of the Veteran's private treatment records from March to May 2008 reflect that the Veteran had pain, discoloration, and thickening in his toes since the initial trauma fifteen years prior to the examinations. The Veteran also had his right great toenail removed in April 2008. Upon VA examination in July 2012, the examiner reported the Veteran had metatarsalgia, a right side ingrown toenail, and right side nail avulsion. On physical examination, the examiner noted moderately severe right side malunion or nonunion of tarsal or metatarsal bones. The examiner reported that "infections of the skin," specifically the tinea pedis and toenail onychomycosis, affected at least 5 percent but less than 20 percent of his total body area and none of his exposed body area. The examiner rendered a diagnosis of onychomycosis of the toenails of the feet and noted the Veteran was missing his right great toenail. The examiner found no peeling nor signs of bacterial infection and noted that the tinea pedis and toenail onychomycosis was only visible if wearing "flip flops." The examination also revealed tinea pedis was present between right great toe and second toe and the left great toe and second toe with exacerbations of tinea pedis on the balls of his feet manifested by dry, flaking, and peeling skin. The Veteran reported while he took pills in the past, he was not taking any medication at that time. The examiner also noted a scar on the Veteran's right great toe which will be addressed in the remand section below. The above evidence reflects that the Veteran's symptoms more nearly approximate the criteria for a 10 percent rating under DC 7806 prior to July 31, 2012. As an initial matter, the Veteran does not contend that he required systemic therapy during the appeal period and the evidence of record also reflects that no systemic therapy was required. The Board notes that the July 2006 VA examination report and the Veteran's private treatment records are inadequate for rating purposes as the examiners did not address the rating criteria, specifically, the percentage of the Veteran's body affected by his tinea pedis and toenail onychomycosis and whether the Veteran required systemic therapy. The only examination that addressed the rating criteria is from July 2012. In that examination, the examiner reported that at least 5 percent but less than 20 percent of his body was affected by the tinea pedis and toenail onychomycosis, which warrants a 10 percent disability rating. The Board finds that it is highly unlikely that the Veteran first manifested the above symptomatology on the date of the examination. Furthermore, the July 2006 VA examination report and the Veteran's private treatment records also indicate that the Veteran had constant and continuous symptoms during the appeal period. In July 2006, the Veteran exhibited scaling on the soles and around the toes of his feet and he had discoloration around his toes. The Veteran also reported, upon private examination in April 2008, that his right great toe had been discolored and thick for the past 15 years. While the Board acknowledges that the Veteran underwent surgery on his great toe in April 2008, the evidence as a whole reflects that the Veteran's tinea pedis and toenail onychomycosis remained relatively consistent throughout the appeal period to warrant a uniform rating. In regard to the residuals of the April 2008 surgery, in particular the post surgical scar, that will be considered separately below. The Board has also considered the Veteran's lay statements, including in his August 2007 Notice of Disagreement and October 2009 VA Form 9 wherein he states that his right toenail was disfigured beyond being "thick." The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). For all the foregoing reasons, the Board finds that a 10 percent, but no higher, rating for tinea pedis and toenail onychomycosis is warranted prior to July 31, 2012. The Board has applied the benefit-of-the-doubt doctrine in determining that the criteria for 10 percent rating are met. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56(1990). Extraschedular Consideration Consideration of referral for an extraschedular rating 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 adequately contemplates 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 the Compensation Service to determine whether an extraschedular rating is warranted. With respect to the initial inquiry posed by Thun, the Board has been unable to identify an exceptional or unusual disability picture with respect to the Veteran's service-connected tinea pedis and toenail onychomycosis. The evidence fails to demonstrate symptomatology of such an extent that application of the ratings schedule would not be appropriate. In this case, the Veteran's symptomatology and overall impairment for his tinea pedis and toenail onychomycosis are fully 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 not required. Nevertheless, the Board will briefly note that the evidence in this case does not demonstrate any of the factors provided in the "governing norms" such as frequent hospitalization or marked interference with employment. See 38 C.F.R. § 3.321(b)(1). In this case, there is no indication that the Veteran has required frequent hospitalizations aside from the removal of great right toenail in April 2008. As such, the Veteran's symptoms have not rendered impractical the application of the regular scheduler standards. Therefore, referral for consideration of extraschedular rating is not warranted. 38 C.F.R. § 3.321(b)(1). ORDER A 10 percent disability rating for tinea pedis and toenail onychomycosis is granted prior to July 31 2012, subject to the laws and regulations governing the award of monetary benefits. REMAND The Board observes that on VA examination in July 2012, the examiner rendered a diagnosis of a great right toe scar. The record reflects that this is a post surgical scar resultant from the removal of the Veteran's toenail in April 2008. In its December 2012 rating decision and January 2013 Supplemental Statement of the Case, the agency of original jurisdiction acknowledged the scar but did not explicitly adjudicate the scar. The Board therefore cannot evaluate the scar without prior consideration by the RO, as this would be prejudicial to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). As such, this issue must be remanded for initial adjudication by the RO/AMC. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should complete an initial adjudication of entitlement to a compensable evaluation of a post surgical right great toe scar. If the determination remains less than fully favorable to the Veteran, he should be provided with a statement of the case (SOC) and given an opportunity to respond thereto. Thereafter, if necessary, the case should be returned to the Board for appellate disposition. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs