Citation Nr: 1337592 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 07-05 710 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to a compensable rating for tinea unguium. 2. Entitlement to a compensable rating for right ear hearing loss. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from October 1978 to March 1982, and also had 2 years, 9 months of prior active service, the dates of which are unverified (apparently from December 1975 to October 1978). These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2006 and February 2011 rating decisions by the Cleveland, Ohio Department of Veterans Affairs (VA) Regional Office (RO). The August 2006 rating decision granted service connection for tinea unguium, rated 0 percent effective March 8, 2006, and denied service connection for schizophrenia and for right ear hearing loss. The February 2011 rating decision granted service connection for right ear hearing loss, rated 0 percent, effective March 8, 2006. In April 2007, a hearing was held before a Decision Review Officer at the RO. In October 2011, a Travel Board hearing was held before the undersigned. Transcripts of these hearings are associated with the claims file. In February 2012 the Board remanded the matters for additional development. An interim (December 2012) rating decision granted service connection for paranoid schizophrenia, rated 70 percent, effective March 8, 2006. As this represents a full grant of that benefit sought, that matter is no longer on appeal. The matter of the rating for right ear hearing loss is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if action on his part is required. FINDING OF FACT Throughout, the Veteran's tinea unguium has been manifested by symptoms in each foot analogous to scars that are painful on examination. CONCLUSION OF LAW A 10 percent rating is warranted for tinea unguium of each foot. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.31, 4.118, Diagnostic Codes (Codes) 7800-7806 (as in effect prior to October 23, 2008). REASONS AND BASES FOR FINDING AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award of service connection for tinea unguium of the toenails, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A January 2007 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased initial rating and readjudicated the matter. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) ("where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (discussing the rule of prejudicial error). It is not alleged that the Veteran was prejudiced by a notice deficiency in this matter. The Veteran's available treatment records have been secured. While treatment records from the Wade Park, Cleveland VA Medical Center are unavailable (as determined by the AMC), it appears from the evidentiary record that those records related to treatment for a psychiatric disorder and not for the tinea unguium disability at issue herein. At the Travel Board hearing in October 2011 the undersigned elicited testimony regarding the current severity of the tinea unguium. Discussion at the hearing reflects that it was understood that a contemporaneous examination to assess the tinea unguium was necessary. The Board finds that there has been substantial compliance with the United States Court of Appeals for Veterans Claims (Court) interpretation in Bryant v. Shinseki, 23 Vet. App. 488 (2010), of the Board's duties under 38 C.F.R. § 3.103(c)(2). The RO arranged for VA skin examinations in June 2006, January 2011, and March 2012 (pursuant to Board remand). The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this appeal. The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In a claim for a higher initial rating assigned with an award of service connection, all of the evidence submitted in support of the Veteran's claim for the entire time period involved is to be considered, and "staged" ratings may be assigned for specific periods of time, as warranted. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's tinea unguium of the toenails is rated under Code 7813. The criteria for rating skin disability were revised, effective October 23, 2008. 73 Fed. Reg. 54,708 (Sept. 23, 2008). The announcement of the final regulation states that the new criteria apply "to all applications for benefits received by VA on or after October 23, 2008", but that a Veteran rated under the criteria in effect prior to that date may request review under the revised criteria. The instant claim was received in March 2006, (prior to October 23, 2008). Neither the Veteran nor his representative has requested review under the revised criteria; therefore, the Veteran's tinea unguium will be rated under the criteria in effect prior to October 23, 2008. Under the criteria in effect prior to October 23, 2008, tinea is to be rated as scars or dermatitis, depending upon the predominant disability. See Code 7813. Given the nature of the symptoms shown, the Board finds that the disability is most appropriately rated as scars. A 10 percent rating is warranted for a scar (not on the head, face, or neck) when it is: a deep scar (one associated with underlying tissue damage) or one that causes limited motion, and involves an area or areas of 6 square inches (39 sq. cm.) or greater (Code 7801); a superficial scar that does not cause limited motion and involves an area or areas of 144 square inches (929 sq. cm.) or greater (Code 7802); a superficial, unstable (one where for any reason, there is frequent loss of covering of skin over the scar) scar (Code 7803); or a superficial scar that is painful on examination (Code 7804). Under Code 7805 scars may also be rated based on limitation of function of the affected part. Note 2 following Code 7804 provides that a 10 percent rating is to be assigned for a scar on the tip of a toe even though amputation of the part would not warrant a compensable rating. 38 C.F.R. § 4.118. The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence, as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or does not show, as to the claim. A July 1979 STR shows the Veteran complained of and was treated for pain and burning sensation of his feet and for his toenails falling off. The diagnoses were pes planus, fungus, and tinea unguium. On June 2006 VA skin examination, the Veteran reported that tinea of his feet/toenails was first diagnosed in July 1979 (while he was on active duty). Since his discharge from service, it had never fully resolved and he still has problems with very thick brittle toenails of both feet. He stated that his treatment consisted of daily applications of Tolnaftate powder and Tolnaftate cream (1 percent). The percentage of the entire body affected was less than 2 percent. There was no scarring or disfigurement. The diagnosis was tinea unguium. An April 2008 VA podiatry clinic report notes the Veteran presented at the clinic with long thickened nails. On examination he had cicatrix formation on the dorsal aspect of the first metatarsal and second digit of the left foot. His toenails were hypertrophic, discolored-yellow, and with subungual debris. His web spaces bilaterally were clean and dry. The skin displayed diffuse dryness bilaterally. The diagnosis (in pertinent part) was onychomycosis. An October 2008 VA podiatry outpatient clinic report notes the Veteran was seen for long, thickened nails. His active medication list showed a prescription for Tolnaftate cream (1 percent), to be applied daily. On January 2011 VA skin examination, the Veteran reported that he had painful toenails in service and was treated conservatively with numerous medications. He stated he used topical antifungal creams in the military; and postservice had used urea cream (40 percent twice daily). He stated that the medication does not help. Examination of the feet revealed yellowish discoloration, thickening, and crumbliness of all the toenails. The right and left great toenails were the worst. The toenails were painful. The diagnosis was tinea unguium. On March 2012 VA skin diseases examination, the Veteran reported having painful toenails which were thick, crumbling and discolored. Prolonged walking and standing made the pain worse. He had not had treatment with oral or topical medications for any skin disability in the past 12 months. He had not had treatments for exfoliative dermatitis or papulosquamous disorders in the past 12 months. Physical examination found dermatitis with the percentage of total body area affected reported none; and the percentage of exposed body area less than 5 percent. The diagnosis was tinea unguium. The examiner noted that the Veteran's skin disability did not impact on his ability to work. At the outset the Board notes that the Veteran has diagnoses of co-existing orthopedic foot disabilities. This appeal is limited to the matter of the rating for his tinea unguium (i.e., toenail skin disability), and does not encompass pathology, symptoms and impairment due to the co-existing orthopedic disabilities. On review of the clinical data the Board found that the diagnostic code most appropriate for rating the disability at issue is Code 7804 (for superficial scars painful on examination). The evidence supports the award of a 10 percent (maximum) rating for tinea unguium of each foot under this Code. VA examiners in January 2011 and March 2012 found the Veteran's toenails of both feet were discolored, thickened, crumbling and painful. The 10 percent ratings assigned for each foot are the maximum schedular rating under the scar rating criteria. The Board observes that while higher ratings are available under the criteria for rating dermatitis, rating under those criteria would be inappropriate, as the extent of area involved falls squarely within the parameters of the criteria for a 0 percent rating (which obviously would not be to the Veteran's benefit). There is no objective evidence or allegation in the record of symptoms of, and/or impairment due to, tinea unguium not encompassed by the criteria for the 10 percent ratings now assigned. Therefore, the schedular criteria are not inadequate, and referral of this matter for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Finally, the March 2012 VA examiner specifically noted that the Veteran's skin disability did not impact on his ability to work; the matter of entitlement to a total rating based on individual unemployability is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER A 10 percent rating is granted for tinea unguium of each foot, subject to the regulations governing payment of monetary awards. REMAND In February 2012 the Board remanded the matter of the rating for right ear hearing loss to the RO for further development, including arranging for an audiological evaluation of the Veteran. Such evaluation was conducted in March 2012. A review of the record (including Virtual VA) found that the RO/AMC has not issued a supplemental statement of the case (SSOC) in the matter, resulting in a due process deficiency that requires correction. See 38 C.F.R. § 19.31. The case is REMANDED for the following: The RO should review the record and readjudicate the claim seeking a compensable rating for right ear hearing loss. If it remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs