Citation Nr: 1500526 Decision Date: 01/07/15 Archive Date: 01/13/15 DOCKET NO. 12-12 399 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a higher rating for bilateral onychomycosis of the toenails and tinea pedis (foot and nail fungus), evaluated as 10 percent disabling prior to April 14, 2010 and as noncompensable therefrom. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A.P. Armstrong, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1982 to January 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which decreased the evaluation for tinea pedis to a non-compensable rating effective April 14, 2010. Rating decisions from January 2013 granted service connection for onychomycosis of the toenails, combined the condition with tinea pedis, and assigned a non-compensable rating. In his original May 2012 Form 9, the Veteran requested a video hearing with a Board member. In his March 2013 Form 9, he requested a hearing with a Board member at his local RO. When a VA representative contacted the Veteran for clarification in April 2013, the Veteran stated that he no longer wanted a hearing and instead wanted his appeal to move forward. FINDINGS OF FACT The evidence shows that the Veteran's foot and nail fungus is unstable and painful but does not affect more than 5 percent of the entire body or exposed areas affected, require corticosteroids or immunosuppressive drugs, or cause functional limitation. CONCLUSION OF LAW Throughout the rating period on appeal, the criteria for a ten percent rating, but not higher, for foot and nail fungus have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7813-7804, 7806 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). In February 2010, prior to adjudication of his claim, the RO sent the Veteran a letter, providing notice that satisfied the requirements of the VCAA. The letter explained how ratings and effective dates would be assigned. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). No additional notice is required. Next, VA has a duty to assist the Veteran in the development of claims. This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary. 38 C.F.R. § 3.159. All pertinent, identified medical records have been obtained and considered. VA provided examinations for the Veteran's feet in April 2010 and February 2013. There is no indication or assertion that these examinations were inadequate. To the contrary, they provided detail on diagnoses and symptoms appropriate for ratings determinations. The Board has carefully reviewed the record and determines there is no additional development needed for adjudication. As VA has satisfied its duties to notify and assist the Veteran, no further notice or assistance is required. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. I. Analysis First, the Board notes that although the rating evaluation for this disability was reduced from ten percent to zero percent for the bulk of the appeal period, the Veteran's overall disability rating of 90 percent did not change. See 38 C.F.R. § 4.25. Therefore, the amount of compensation received did not change and this appeal is not subject to the laws for reductions in disability compensation. See 38 C.F.R. § 3.105(e). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 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 primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of another. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to report symptoms observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The Board finds his statements credible as they are detailed and consistent. Skin and nail disabilities are rated under 38 C.F.R. § 4.118. Specifically, the Veteran's nail and foot fungus was rated under Diagnostic Code 7813. See 38 C.F.R. § 4.118. Diagnostic Code 7813 directs the rater to Diagnostic Codes 7800 through 7806 depending on the symptoms of the disability. The Veteran's nail fungus has been rated with Diagnostic Code 7806 for dermatitis, which provides for a compensable rating if there is a disability on at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent of the 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. 38 C.F.R. § 4.118, DC 7806 (2014). Diagnostic Code 7806 assigns a zero, or noncompensable rating for a skin disability that covers less than 5 percent of the entire body or less than five percent of the exposed areas affected, and no more than topical therapy required. Id. The criteria for a ten percent rating, but not higher, for nail and foot fungus have been met. See 38 C.F.R. § 4.118, DC 7813-7804, 7806. The evidence does not show that the Veteran's nail fungus affects more than five percent of the entire body or exposed areas affected or requires corticosteroids or immunosuppressive drugs. The April 2010 VA examiner found that the foot and nail fungus affected zero percent of exposed area and one percent of the whole body. Similarly, the February 2013 examiner found the fungus to affect less than five percent of the body and none of exposed areas. The February 2013 examiner recorded no need for systemic corticosteroids or immunosuppressive drugs. The examiner noted topical antifungal medications used for six weeks or more, but not constantly in the prior year. VA records show treatment for the fungus but also do not indicate the use of steroids or immunosuppressive drugs. Based on the evidence, the Veteran's nail and foot fungus does not meet the criteria for a compensable rating under Diagnostic Code 7806. See 38 C.F.R. § 4.118. Following the guidance of Diagnostic Code 7813, the Board finds that the Veteran's fungal disability can receive a 10 percent rating under Diagnostic Code 7804, as it is unstable and tender. See 38 C.F.R. § 4.118, DC 7813-7804. Diagnostic Code 7804 provides for ratings of skin conditions that are unstable and/or painful. 38 C.F.R. § 4.118, DC 7804. One or two painful or unstable areas warrant a 10 percent rating while three or more areas warrant higher ratings. Id. The Diagnostic Code defines an unstable condition as one where there is frequent loss of covering of the skin. Id at Note (1). During the February 2013 examination, the Veteran reported that the fungus caused his great toenails to fall off and regenerate every six months. Treatment also from February 2013 noted toenails falling off and discomfort prior to them falling off. In the examination, the Veteran reported that the rash between his toes caused cracking, tenderness, and itch. Biannual loss of toenails appears to fall under the definition of instability in Note (1) discussed above. See 38 C.F.R. § 4.118, DC 7804. Additionally, the reported tenderness and discomfort suggest pain associated with the disability. The Veteran has one area of fungus on each foot for a total of two areas on his body. There is no evidence of other areas affected; service connection is limited to his feet. Therefore, a ten percent rating, but not higher is warranted under Diagnostic Code 7804 for two areas of painful and unstable fungus. See 38 C.F.R. § 4.118. The Veteran's nail and foot fungus could not receive a higher rating under another diagnostic code for the skin. See 38 C.F.R. § 4.118. The VA examiners found that the nail and foot fungus did not affect the Veteran's face, head, or neck, so Diagnostic Code 7800 does not apply. Id. As the 2010 examiner found an area of hyperpigmentation less than six square inches, the Veteran could not receive a compensable rating under Diagnostic Codes 7801 or 7802. Id. Further, the examiners recorded no limitation of motion or effect on occupation from the fungus to rate under Diagnostic Code 7805. Id. This decision does not change the Diagnostic Code assigned: 7813, and the use of Diagnostic Code 7804 as reference for rating the disability only assists the Veteran as he could not receive a compensable rating under Diagnostic Code 7806. See Read v. Shinseki, 651 F.3d 1296, 1301 (Fed. Cir. 2011)(A service-connected disability is evaluated more generally by the effect it has on the veteran rather than being tied to a specific diagnostic code.). The Board has also considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b) (1). However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Rather, the manifestations of the Veteran's foot and nail fungus are fully contemplated by the schedular rating criteria. Specifically, the area covered by the fungus, loss of toenails, and discomfort were contemplated by the rating criteria and compensated. Therefore, the rating schedule is adequate to evaluate his disability. There are no symptoms that have not been rated in connection with a service-connected disability or attributed to a non-service connected disorder. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, there is no combined effect, which is exceptional and not captured by the schedular evaluations. See Johnson v. McDonald, 2013-7104, 2014 WL 3844196 (Fed. Cir. 2014). Accordingly, referral for consideration of an extra-schedular rating is not necessary. See Thun, 22 Vet. App. at 115-16. The Veteran was afforded the benefit of the doubt, and the preponderance of the evidence supports a ten percent rating for foot and nail fungus, but not higher, throughout the rating period on appeal. See 38 C.F.R. §§ 4.3, 4.118. ORDER A ten percent rating, but not higher, for bilateral onychomycosis of the toenails and tinea pedis is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs