Citation Nr: 1405691 Decision Date: 02/07/14 Archive Date: 02/18/14 DOCKET NO. 12-31 107 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), to include as due to asbestos exposure. 2. Entitlement to service connection for left hand fungus. 3. Entitlement to an initial compensable rating for onychomycosis, with tinea pedis of the left foot. 4. Entitlement to an initial compensable rating for onychomycosis with tinea pedis of the right foot. 5. Entitlement to an initial compensable evaluation for onychomycosis of the right hand with 1st, 2nd, and 4th matrix nail ablation. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzie Gaston, Counsel INTRODUCTION The Veteran served on active duty from September 1955 to May 1959. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a February 2012 rating decision, by the St. Paul, Minnesota, Regional Office (RO), which granted service connection for onychomycosis of the right foot, onychomycosis of the left feet, and onychomycosis with nail matrix ablation of the right hand, each evaluated as noncompensably disabling. The RO also denied the Veteran's claims of entitlement to service connection for COPD, to include as to asbestosis exposure, and service connection for fungus of the left hand. He perfected a timely appeal to that decision. A review of the Virtual VA (VVA) paperless claims processing system reflects that VA/CAPRI records current through February 2013 are in the VVA file. The supplemental statement of the case (SSOC), issued in February 2013, reflects consideration of these records. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT 1. There is no evidence that the Veteran was exposed to asbestos in service or that he currently has any disorders associated with such exposures. 2. The Veteran does not currently suffer from COPD. 3. There is no competent evidence establishing that the Veteran currently suffers from fungus of the left hand. 4. Throughout the initial rating period on appeal, onychomycosis on the toes of both feet is productive of a fungal infection of less than 5 percent of the total body area. There is no evidence of painful scarring or disfigurement. 5. The area affected by the Veteran's onychomycosis of the right hand, with 1st, 2nd and 4th matrix nail ablation, is less than 5 percent of the total body area. There is no evidence of painful scarring or disfigurement. CONCLUSIONS OF LAW 1. COPD was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.311 (2013). 2. The Veteran does not have fungus of the left hand that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2013). 3. The criteria for an initial compensable rating for onychomycosis with tinea pedis of the feet have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5103, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.118, Diagnostic Codes 7813-7806 (2013). 4. The criteria for an initial compensable rating for onychomycosis with nail matrix ablation of the right hand have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.10, 4.31, 4.118, Diagnostic Codes 7820-7806 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist. The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in an SOC or Supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in August 2011 and September 2011 from the RO to the Veteran which were issued prior to the RO decision in February 2012. An additional letter was issued in February 2012. Those letters informed the Veteran of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claims has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notice. The Board is unaware of any outstanding evidence or information that has not already been requested with respect to the claims at issue. The Veteran has been afforded VA examinations on the issues decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations afforded the Veteran are adequate. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and examined the Veteran. Findings necessary to apply the criteria for rating have been made. Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Factual background. The Veteran served on active duty from September 1955 to May 1959; he served aboard the USS Northampton. The enlistment examination, conducted in September 1955, was negative for complaints or findings of a skin condition or a respiratory disorder. The service treatment records (STRs) reflect that the Veteran was seen for evaluation in February 1956, after a 1,000 pound object fell on his lower leg and foot; an x-ray study showed no evidence of fracture. The Veteran was seen in November 1958 complaining of having had a cough for several days productive of a small amount of yellow sputum. On examination, it was noted that the chest was clear. No pertinent diagnosis was noted. The Veteran was next seen in December 1958, at which time it was noted that his cough continued, associated with chest pains. Examination revealed occasional rales on both bases. X-ray study of the lungs was negative. The impression was bronchitis, subacute, mild. The Veteran was prescribed medication and advised to stop smoking for several days. In January 1959, he was seen for evaluation of a fungus on his right foot and hand. Another clinic note in January 1959 reflects a diagnosis of tinea pedis. In April 1959, it was noted that the Veteran had a rash on his right hand; he was prescribed an ointment. The separation examination in May 1959 was negative for any complaints or findings of a skin condition involving the left hand or problems with his lungs, including COPD. The Veteran's claim for service connection (VA Form 21-526) was received in August 2011. Submitted in support of the Veteran's claim were VA progress notes dated from October 1996 to September 2011. A primary care note, dated in January 1999, indicates that the Veteran had very prominent overgrowth of the nails of the right thumb and fourth fingers. It was also noted that this condition has existed for years and was very uncomfortable for the Veteran. The impression was onychomycosis. During a clinical visit in January 2001, the Veteran reported a history of chest pain; he reported having had a cough for the past 3 weeks and had been raising some greenish sputum with blood. He had no fever, chills or sweats; however, he had lost a little weight. Examination of the lungs revealed a few fine scattered crackles. The impression was recent bronchitis. When seen in March 2003, he was diagnosed with possible pneumonia. These records do not reflect any complaints or treatment of a skin condition of the left hand. In March 2010, the Veteran was seen for complaints of ingrown toenails of both feet; he denied any systemic signs of infection or recent trauma. The assessment was ingrown nails x10, manually debrided layer by layer. The Veteran was seen in August 2010 for treatment of a right index finger nail problem; it was noted that he had a history of dystrophic nail secondary to onychomycotic infection and he presented for elective right index finger nail removal with matrixectomy. The impression was right index finger dystrophic nail secondary to chronic fungal infection. The Veteran was afforded a VA examination in November 2011. At that time, the Veteran reported a fungus infection of the left and right hand which has existed since 1957. The skin disease involved areas that are exposed to the sun, including the hands. However, it does not include the face, the neck and the head. The Veteran reported the location of the fungus is on the left and right hands. Due to the skin condition, he has itching of the hands; he also reported problems with shedding of the left hand. There was no exudation, ulcer formation or crusting. The Veteran also reported having fungus of both feet which has existed since 1957; he stated that the skin disease does not involve any areas that are exposed to the sun. The Veteran stated that, due to his skin condition, he has itching right foot and shedding of the right foot; he has no exudation, ulcer formation or crusting. With respect to the left foot, he has itching and shedding; he has no exudation, ulcer formation or crusting. The Veteran stated that he had not undergone treatment for any of the claimed conditions over the past 12 months; and, he stated that he does not experience any overall functional impairment from those conditions. Examination did not reveal acne, chloracne, scarring alopecia, alopecia areata, or hyperhidrosis. The examination did reveal the condition of tinea pedis, which is located on the feet. The examiner reported exfoliation and tissue loss of less than six square inches. There was no ulceration, crusting, disfigurement, induration, inflexibility, hypopigmentation, hyperpigmentation, abnormal texture, or limitation of motion. The skin lesion coverage of the exposed area was 2%. The skin lesion coverage relative to the whole body is 0.01%. The examiner stated that the skin lesions were not associated with systemic disease, and they did not manifest in connection with a nervous condition. There was also a skin condition of onychomycosis located on toenails. It has disfigurement and hyperpigmentation of less than six square inches. Following the examination, the VA examiner stated that there was no diagnosis of fungus to the left hand because there was no pathology to render a diagnosis. The examiner opined that it is less likely as not that the Veteran's left hand fungus is related to the fungus condition treated in service because there is no in-service medical record and no diagnosis. The Veteran was afforded a VA examination in October 2012. The Veteran reported that he did not participate in combat activity. It was noted that the Veteran had onychomycosis with tinea pedis and nail matrix ablation on both feet and right hand; he reported the date of onset of the symptoms as 1957. The Veteran reported that the conditions began while he was aboard the USS Boston. The Veteran related that a hatch fell shut on the first, second and fourth digits crushing the fingernails. He had surgery to have the nail beds ablated because the nails grew back deformed and painful. The Veteran also reported that he has had toenail onychomycosis for about 25 years; his right toenail has had an ablation. The Veteran maintained that the condition has gotten worse. It was noted that the Veteran did not have any scarring or disfigurement of the head, face or neck, and he did not have any systemic manifestations due to any skin disease. He had not been treated with oral or tropical medications in the past 12 months. The examiner noted that the infections of the skin covered less than 5 percent of the total body area, and no exposed area was affected. The examiner further noted that the Veteran's skin condition did not impact his ability to work. The examiner confirmed a diagnosis of onychomycosis with tinea pedis and nail matrix ablation on bilateral feet and right hand. Of record is the report of a Disability Questionnaire (VA Form 21-0960L-1) for respiratory conditions (other than tuberculosis and sleep apnea) completed in December 2012. The examiner indicated that the Veteran does not have and has never been diagnosed with a respiratory condition. The Veteran's VVA file contains VA medical records current through February 2013. These records show that the Veteran continued to receive follow up evaluation and treatment for onychomycosis of the feet and right hand. The Veteran was seen in November 2011 with complaints of painful ingrown nail on the big toenail and the right 5th digit. On examination, there were no open lesions, no ascending cellulitis, and no drainage. The examiner did report findings of dystrophic mycotic fungal nails on all toes with incurvation and significant subungal debris. The examiner also noted bilateral hallux nails which were severely incurvated with significant sudermal bleeding noted in the medial borders of both nails. The assessment was ingrown nails x10 manually debrided layer by layer, decreasing 30 percent to prevent secondary infection. In April 2012, the Veteran was seen for complaints of painful nails on the big toes of both feet; he denied any systemic signs of infection or recent trauma; he was requesting to have the nails removed because he was in so much pain and was having trouble sleeping. Similar complaints were reported in September 2012. III. Legal analysis-Service connection. Service connection is warranted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Holton v. Shinseki, 557 F.3d 1362 (2009). For a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2013). The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. § 1110, 1131; see Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). Evidence must show that the veteran currently has the disability for which benefits are being claimed. As provided by 38 U.S.C.A. § 1154(a), VA is required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit has stated that competent medical evidence is not required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Instead, under section 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, the lay person is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). There is no specific statutory or regulatory guidance with regard to claims for service connection for asbestos-related diseases. However, in 1988 VA issued a circular on asbestos-related diseases which provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (Oct. 3, 1997) (hereinafter "M21-1"). Subsequently, an opinion by the VA General Counsel discussed the development of asbestos claims. VAOPGCPREC 4-2000 (April 13, 2000). The Board notes that the aforementioned provisions of M21-1 were rescinded and reissued as amended in a manual rewrite (MR) in 2005. See M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29, entitled "Developing Claims for Service Connection for Asbestos-Related Diseases," and Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9, entitled "Service Connection for Disabilities Resulting from Exposure to Asbestos." VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols using the following criteria. Ennis v. Brown, 4 Vet. App. 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). The latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. The exposure may have been direct or indirect, and the extent or duration of exposure is not a factor. M21-1MR, Part IV, Subpart ii, Chap. 1, Sec. H, Para. 29a. The manual provisions acknowledge that inhalation of asbestos fibers and/or particles can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. As to occupational exposure, exposure to asbestos has been shown in insulation and shipyard workers, and others. The clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9a-f. The manual further provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. M21-1MR, Part IV, Subpart ii, Chap. 2, Sec. C, Para. 9h. When, after consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. A. S/C-COPD. The Veteran contends that he has COPD as a result of inservice exposure to asbestos. For the reasons set forth below, the Board concludes that service connection is not warranted. The Veteran filed a claim for service connection for COPD as a result of asbestos exposure in August 2011. Here, the evidence does not specifically show, nor does the Veteran allege, that he had a military occupational specialty during service that is known to have higher incidents of asbestos exposure (e.g. mining, milling, work in shipyards, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, military equipment, etc.) The record indicates that the Veteran served as a seaman See DD Form 214, which involves performing ordinary desk duties in connection with the upkeep and operation of a ship, stands watch as a lookout, and serves as a messenger. However, even if it is conceded that the Veteran was exposed to asbestos, he has not been diagnosed with a lung disability that is specifically associated with asbestosis exposure. In this regard, the Board notes that the STRs are negative for any findings of a chronic lung disorder. Significantly, while the STRs indicate that the Veteran was diagnosed with subacute mild bronchitis in December 1958, the separation examination in May 1959 was negative for any findings of a pulmonary disease; a chest x-ray was reported to be negative. More specifically, the clinical evaluation of the lungs and chest were normal. In addition, there is no evidence to indicate that the Veteran has been diagnosed with asbestos or any other asbestos-related disease. Although the Veteran claims service connection for COPD, he has failed to identify or submit any medical evidence showing that he currently has a respiratory disease. In fact, in a DBQ completed in December 2012, the examiner noted that the Veteran did not have nor has ever been diagnosed with a respiratory condition. A current disability is required in order to establish service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Despite the Veteran's claim, he is not competent or qualified, as a layperson, to render a diagnosis or an opinion concerning medical causation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Specifically, where the determinative issue is one of medical causation or a diagnosis, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). In this case, there is none. COPD is not a condition under case law that has been found to be capable of lay observation, and the determination as to the presence or diagnosis of such disability therefore is medical in nature. Savage v. Gober, 10 Vet. App. 488 (1997); Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, as there is no competent and probative evidence demonstrating that the Veteran has a diagnosis for COPD, service connection for such disorder is not warranted. Without a disability, there can be no entitlement to compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Therefore, as there is no competent and probative evidence demonstrating that the Veteran has a diagnosis for COPD, service connection for such disorder is not warranted. Without a disability, there can be no entitlement to compensation. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). B. S/C fungus, left hand. The threshold question that must be addressed here (as with any claim seeking service connection) is whether the Veteran actually has [or at any time during the appeal period is shown to have had) the disability for which service connection is sought, specifically a chronic disability manifested by fungus on the left hand. In the absence of proof of a present disability, there is no valid claim of service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran was specifically advised that to establish service connection for a claimed disability, as a threshold requirement, he must show he actually has the disability. In this regard, the Board notes that the STRs do not reflect any findings of a skin rash, diagnosed as fungus, on the left hand. Moreover, the post service treatment reports are completely negative for any clinical findings of fungus on the left hand. On the occasion of a VA examination in November 2011, the VA examiner stated that there was no diagnosis of fungus to the left hand because there was no pathology to render a diagnosis. The examiner opined that it is less likely as not that the Veteran's left hand fungus is related to the fungus condition treated in service because there is no inserivce medical record and no diagnosis. Based upon the foregoing, the record does not corroborate that the Veteran has fungus of the left hand. Given the absence of an appearance of a rash on the left hand on examination, the preponderance of the evidence weighs heavily against the likelihood that such condition is present. The Board's inquiry is constrained by the evidence before it. Provided there was competent evidence of a dermatological condition on file, either from VA or private treatment providers, then there would be objective support for this claim. Without evidence of a current disability, there is no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (stating a veteran seeking disability benefits must establish the existence of a disability and a connection between the veteran's service and the disability). The benefit-of-the-doubt doctrine is not applicable in this case, because the preponderance of the evidence is against the claim of service connection. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). IV. Legal Analysis-Higher Evaluation. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155 (West 2002 & Supp. 2013); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2013). If two evaluations are potentially applicable, the higher evaluation 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 (2013). A disability may require re-evaluation in accordance with changes in a Veteran's condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. However, where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations can 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, 126 (2001). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) did not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the Court in DeLuca must be followed when adjudicating claims under the diagnostic codes that require consideration of limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The Board notes that the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert at 54. A. Bilateral Feet Onychomycosis and Tinea Pedis. The Veteran contends he is entitled to an initial compensable disability rating for onychomycosis and tinea pedis, bilateral feet, which was rated by the RO under Diagnostic Code 7813. Diagnostic Code 7813 states that dermatophytosis is to be rated under the diagnostic code for disfiguring scars to the head, face or neck (Diagnostic Code 7800), other scars (Diagnostic Codes 7801-7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813. As the onychomycosis affects only the Veteran's feet and has not been shown to cause any scarring, the Board will rely on Diagnostic Code 7806, governing dermatitis. Diagnostic Code 7806 provides that a noncompensable rating is warranted when less than 5 percent of the entire body is affected, and the condition requires no more than the use of topical therapy during the past 12 months. A 10 percent rating is warranted when 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 is affected; or intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during a 12-month period. A 30 percent rating is warranted for 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 a 12-month period. 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 a 12-month period warrants a 60 percent rating. 38 C.F.R. § 4.118, Diagnostic 7806. The Board notes that the portion of the Schedule for Rating Disabilities that addresses the skin was amended effective October 23, 2008. The amendments, however, only apply to applications for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). Regarding the Veteran's onychomycosis of the feet, the Board finds that, upon review of the evidence, an initial compensable rating is not warranted at any time during the appeal period. This is so because, as noted above, in order to obtain a higher, 10 percent, rating under Diagnostic Code 7806, the rash must cover an area of at least 5 percent, but less than 20 percent of the entire body, or require intermittent systemic therapy. Here, the medical evidence shows that the November 2011 VA examiner specifically found the Veteran' skin disorders to cover less than five percent of his total body area. Similarly, the October 2012 VA examiner found the disorder to cover less than 5 percent of the total body area. At no time during the appeal period has the Veteran's onychomycosis of the feet required any systemic therapy. This evidence, again, is consistent only with the criteria for a noncompensable rating. See 38 C.F.R. § 4.118, Diagnostic 7806. Based on the foregoing, the Board concludes that the disability due to the Veteran's onychomycosis of the feet with tinea pedis is not manifested by symptomatology that more nearly approximates the criteria for an initial compensable rating for the disorder. See 38 C.F.R. § 4.7. Accordingly, the preponderance of the evidence is against the claims, and the claims for initial compensable ratings for onychomycosis of the feet with tinea pedis must be denied. B. Onychomycosis of the right hand. The Board has reviewed the evidence and is unable to grant an increased rating for the Veteran's service-connected onychomycosis of the right hand. As discussed above, to merit an increased rating, the evidence must show that the disability affects at least 5 percent of the entire body, or at least 5 percent of exposed areas; or that 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. The evidence here shows none of those things. The evidence shows that the Veteran has undergone two VA examinations, in addition to several outpatient treatment consultations. On none of those occasions, however, did the Veteran's disability manifestly affect at least 5 percent of his entire body, or in the alternative, at least 5 percent of the exposed areas (here, his right hand and feet). In addition, there is no indication in the record that the Veteran has undergone any intermittent systemic therapy. Finally, the Board has also considered whether referral for extraschedular consideration is suggested by the record. In Thun v. Shinseki, F.3d 1366 (Fed. Cir. 2009), the Court articulated 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 is found inadequate because it does not contemplate the claimant's level of disability and symptomatology, the Board must 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 the disability picture requires the assignment of an extraschedular rating. In the case at hand, there is no objective evidence that the disability picture presented is exceptional or that schedular criteria are inadequate. In this case, the Board finds there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to the onychomycosis and tinea of the feet and right hand that would take the Veteran's case outside the norm so as to warrant the assignment of an extraschedular rating during the appeal period. The Veteran's impairment is contemplated by the schedular rating assigned. ORDER Service connection for COPD, to include as due to asbestos exposure, is denied. Service connection for fungus of the left hand is denied. An initial compensable disability rating for onychomycosis and tinea pedis, bilateral feet, is denied. An initial compensable disability rating for onychomycosis with 1st, 2nd, and 4th matrix nail ablation is denied. ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs