Citation Nr: 1604282 Decision Date: 02/05/16 Archive Date: 02/11/16 DOCKET NO. 12-11 121 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to a higher (compensable) initial rating for service-connected bilateral onychomycosis and onychocryptosis. REPRESENTATION Appellant represented by: Florida Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Wasser, Counsel INTRODUCTION The Veteran served on active duty from June 1971 to June 1975. This case comes to the Board of Veterans' Appeals (Board) on appeal from a November 2010 decision by the RO in St. Petersburg, Florida that granted service connection and a noncompensable rating for service-connected bilateral onychomycosis and onychocryptosis of the toenails. A personal hearing was held in November 2015 before the undersigned Veterans Law Judge (VLJ) of the Board, and a transcript of this hearing is of record. Additional evidence was received from the Veteran in December 2015. As the Veteran has waived initial RO review of this evidence, the Board will consider it. 38 C.F.R. § 20.1304. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although further delay is regrettable, the Board finds that further development is required prior to adjudication of the Veteran's claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). A new examination is needed to fully and fairly evaluate this claim for a higher initial rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). VA compensation examinations were conducted in September 2010 and February 2012. The Board finds that the examination reports are inadequate, as they are not fully responsive to the relevant rating criteria, and the claim must therefore be remanded for another VA medical opinion. See 38 C.F.R. § 4.2 (If a diagnosis is not supported by the findings on the examination report, or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.) The Veteran's service-connected condition of bilateral onychomycosis and onychocryptosis of the toenails of both feet is currently evaluated under 38 C.F.R. § 4.118, Diagnostic Code 7813. This Diagnostic Code provides ratings for dermatophytosis (or ringworm) in various locations on the body, including the feet (tinea pedis) and nails (tinea unguium). Diagnostic Code 7813 provides that dermatophytosis is to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. 38 C.F.R. § 4.118. In relevant part, Diagnostic Code 7806 assigns ratings for dermatitis or eczema based on the percentage of the body that is affected, or based on whether systemic therapy such as corticosteroids or other immunosuppressive drugs is required. Neither the September 2010 nor the February 2012 VA examiner provided an estimate of the percentage of the Veteran's body that is affected by the service-connected skin/toenail disease, and thus the examination report is inadequate and another examination is required which includes this information. The Board notes that the Veteran has other non-service-connected disabilities that affect her feet, to include diabetic neuropathy. Both the use of manifestations not resulting from service-connected disease or injury and the evaluation of the same manifestation under different diagnoses are to be avoided. See 38 C.F.R. § 4.14. In other words, symptoms from a non-service-connected foot disorder may not be considered when evaluating the service-connected bilateral onychomycosis and onychocryptosis of the toenails. However, the United States Court of Appeals for Veterans Claims (Court) has held that when it is not possible to separate the effects of a service-connected condition from a nonservice-connected condition, 38 C.F.R. §§ 3.102 and 4.3 require VA adjudicators to resolve this doubt in the Veteran's favor and for all intents and purposes attribute any signs and symptoms in question to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Finally, it appears that there are outstanding relevant VA medical records. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). The Veteran testified that throughout the rating period on appeal, she has received only VA treatment for her service-connected bilateral onychomycosis and onychocryptosis, and has been receiving treatment for this condition approximately every four months since 2007. The RO obtained VA outpatient treatment records dated from August 2008 to November 2010, and the Veteran has recently submitted photocopies of relevant VA treatment records from the podiatry clinic dated from December 2009 to July 2015, although they appear to be incomplete. Thus, on remand, the AOJ should obtain any additional VA medical records dated from January 2007 to August 2008, and dated from November 2010 to the present. Bell, supra. In light of the medical evidence (see, e.g., March 2013 VA podiatry note) and the Veteran's hearing testimony that she has severe bilateral toe pain due to her service-connected condition such that she is unable to wear closed-toe shoes without pain, the AOJ should consider other potentially applicable rating criteria, and the possibility of an extraschedular rating. Accordingly, the case is REMANDED for the following action: 1. Obtain all relevant VA medical records of treatment or evaluation of the service-connected bilateral onychomycosis and onychocryptosis of the toenails, that are not duplicates of those already in the claims file. In particular, the AOJ should obtain any additional relevant VA medical records (including podiatry notes) dated from January 2007 to August 2008, and from November 2010 to the present. 2. After obtaining the available records, schedule another VA compensation examination of the toenails to ascertain the severity of the Veteran's bilateral onychomycosis and onychocryptosis of the toenails. All necessary diagnostic testing and evaluation should be performed to make this determination. The claims file must be made available to and reviewed by the examiner. (a) The examiner must indicate the percentage of the Veteran's body that is affected by bilateral onychomycosis and onychocryptosis of the toenails, and indicate whether she is receiving systemic therapy such as corticosteroids or other immunosuppressive drugs, and if so, the duration of such systemic therapy. (b) The examiner should be asked to distinguish between symptoms due to the service-connected bilateral onychomycosis and onychocryptosis of the toenails, and symptoms due to any nonservice-connected disorders affecting the feet or toes. If the examiner is unable to determine what measure of the Veteran's toe/toenail impairment is attributable to the service-connected condition versus any other foot disorders that are not service-connected, then the examiner must expressly indicate this. 3. Then readjudicate the claim in light of the additional evidence, including on a schedular and extraschedular basis. If the claim is not granted to the Veteran's satisfaction, send her and her representative a supplemental statement of the case with consideration of all additional evidence received since the March 2012 statement of the case, and give her an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. 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 2014). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2015).