Citation Nr: 1735071	
Decision Date: 08/24/17    Archive Date: 09/06/17

DOCKET NO.  13-24 743	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado


THE ISSUE

Entitlement to a higher initial rating for onychomycosis, bilateral great toes, rated as noncompensable prior to April 4, 2016 and as 30 percent disabling from that date.


REPRESENTATION

Appellant represented by:	Colorado Division 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 September 1994 to March 2002.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2012 RO decision that, in pertinent part, granted service connection and a noncompensable rating for onychomycosis of the bilateral great toes.

In August 2015, the Veteran testified via videoconference before the undersigned Veterans Law Judge, seated at the Board's Central Office in Washington, D.C. 

In October 2015, the Board remanded this case to the Agency of Original Jurisdiction (AOJ) for additional development.

In June 2016, the RO granted a higher 30 percent rating for onychomycosis, bilateral great toes effective from April 4, 2016. The case was subsequently returned to the Board.

The United States Court of Appeals for Veterans Claims (Court) has held that a rating decision issued subsequent to a notice of disagreement which grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the matter of a higher rating remains in appellate status.  

In a January 2017 decision, the Board granted higher ratings for service-connected ingrown toenails of the right and left great toes, and stayed the adjudication of the appeal for a higher rating for service-connected onychomycosis of the great toes pursuant to Johnson v. McDonald, 27 Vet. App. 497 (2016). That decision was reversed by the United States Court of Appeals for the Federal Circuit, and as such, this stay has since been lifted.  Johnson v. Shulkin, 862 F.3d 1351 ( Fed. Cir. 2017).  The Board will now adjudicate this appeal.



FINDINGS OF FACT

1. Prior to August 20, 2015, the Veteran's onychomycosis of the bilateral great toes covered less than 5 percent of the total and 0 percent of the exposed body, the Veteran did not use systemic therapy such as corticosteroids or other immunosuppressive drugs, and there is no evidence of any use of corticosteroid medication of any type.

2. From August 20, 2015 to the present, the Veteran's onychomycosis of the bilateral great toes is manifested by use of oral Lamisil systemic therapy which was required for a total duration of six weeks or more, but not constantly, during the past 12-month period; the condition covered a total body area of no more than 5 percent to less than 20 percent, and affected no exposed areas.


CONCLUSIONS OF LAW

1. Prior to August 20, 2015, the criteria for a disability rating in excess of 0 percent for onychomycosis of the bilateral great toes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes 7806, 7813, 7820 (2016).

2. From August 20, 2015 to April 4, 2016, the criteria for a higher 30 percent disability rating (and no higher) for onychomycosis of the bilateral great toes have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes 7806, 7813, 7820 (2016).

3. From April 4, 2016, the criteria for a rating in excess of 30 percent for onychomycosis of the bilateral great toes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes 7806, 7813, 7820 (2016).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Notice and Assistance

VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

VA's duty to notify was satisfied by a January 2012 letter as to the original service connection claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 

With regard to the appeal for a higher initial rating for service-connected onychomycosis of the bilateral great toes, in cases such as this, where service connection has been granted and an initial disability rating and effective date has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103 (a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).

The Veteran was afforded a hearing before the Board in August 2015, and a copy of the transcript is of record. There is no allegation that the hearing provided to the Veteran was deficient in any way and further discussion of the adequacy of the hearing is not necessary. Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). 

VA also fulfilled its duty to assist the Veteran with this claim by obtaining all potentially relevant evidence, which is obtainable, and therefore appellate review may proceed without prejudicing him. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; see also Bernard v. Brown, 4 Vet. App. 384 (1993). To this end, VA has obtained service treatment records and VA and private medical records, assisted the appellant in obtaining evidence, and arranged for VA compensation examinations and medical opinions as to the severity of his onychomycosis of the bilateral great toes. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file; and the appellant has not contended otherwise.  

Only if the record is inadequate or there is suggestion the current rating may be incorrect is there then a need for a more contemporaneous examination. 38 C.F.R. § 3.327(a). Here, the most recent VA compensation examinations for this condition were conducted in April 2016. The mere passage of time since does not, in and of itself, necessitate another examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). A medical opinion is adequate when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one." Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  

The Board finds that the examination reports were each sufficiently detailed with recorded history, impact on employment and daily life, and clinical findings.  The examinations were conducted by competent medical professionals. In addition, it is not shown that the examinations were in any way incorrectly conducted or that the VA examiners failed to address the clinical significance of the Veteran's symptoms. Further, the VA examination reports addressed the applicable rating criteria.  In this regard, the reports of record contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the service-connected onychomycosis of the bilateral great toes to provide probative medical evidence for rating purposes. The Board finds that the most recent VA examination is adequate as they provide the information needed to properly rate his onychomycosis of the bilateral great toes.  38 C.F.R. §§ 3.327(a), 4.2.  The Board finds that another examination is not needed since there is sufficient evidence, already on file, to fairly decide this claim.  

The Board further finds that the RO has substantially complied with its prior remand orders.  In this regard, the Board directed that additional treatment records be obtained and a VA examination be conducted, and this was done. Therefore, the Board finds that no further development is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time.

Law and Regulations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10.

Governing law provides that the evaluation of the same manifestation under different diagnoses, known as pyramiding, is to be avoided. See Esteban v. Brown, 6 Vet. App. 259 (1994); see also 38 C.F.R. § 4.14. In Esteban, the United States Court of Appeals for Veterans Claims (Court) found that when a Veteran has separate and distinct manifestations from the same injury he should be compensated under different Diagnostic Codes.

When it is not possible to separate the effects of the service-connected disability from a non-service-connected disability, such signs and symptoms must be attributed to the service-connected disability. 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).

When rating the Veteran's service-connected disability, the entire medical history must be borne in mind.  Schafrath v. Derwinski, 1 Vet. App. (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board's primary focus in such cases is upon the current severity of the disability.  Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994).  However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999);  Hart v. Mansfield, 21 Vet. App. 505 (2007).

The Veteran's lay statements and testimony are considered competent evidence when describing his symptoms of disease or disability that are non-medical in nature. Barr v. Nicholson, 21 Vet. App. 303 (2007), Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). His lay statements and testimony regarding the severity of his symptoms must be viewed in conjunction with the objective medical evidence of record and the pertinent rating criteria. And the ultimate probative value of his lay testimony and statements is determined not just by his competency, but also his credibility to the extent his statements and testimony concerning this is consistent with this other evidence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). See also 38 C.F.R. § 3.159(a)(1) and (a)(2).
Higher Rating

The Veteran contends that his service-connected onychomycosis of the bilateral great toes is more disabling than currently evaluated. In his October 2012 notice of disagreement, he asserted that he used intermittent systemic therapy (corticosteroids) given by mouth required for a duration of less than six weeks during the past year, and he continued to receive treatment for this condition.

"Onychomycosis" is defined as a fungal infection of the toenails or fingernails, and is also called dermatophytic onychomycosis, tinea unguium, and ringworm of the nail. See Dorland's Illustrated Medical Dictionary, 32nd ed., 2012, at 1322).

The AOJ initially rated onychomycosis of the bilateral great toes as noncompensable from the date of service connection on November 14, 2011 under Diagnostic Code 7820, pertaining to skin infections. From April 4, 2016, the AOJ has rated this disability as 30 percent disabling under Diagnostic Codes 7820-7806. 

Diagnostic Code 7813 provides ratings for dermatophytosis (or ringworm) in various locations on the body, including the body (tinea corporis), the head (tinea capitis), the feet (tinea pedis), the beard (tinea barbae), the nails (tinea unguium), and the inguinal area, also known as jock itch (tinea cruris). This Diagnostic Code 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 . 

Diagnostic Code 7820 pertains to infections of the skin not listed elsewhere (including bacterial, fungal, viral, treponemal and parasitic diseases), and provides that the infection 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. 

The Board finds that the service-connected onychomycosis of the bilateral great toes is more appropriately rated under Diagnostic Code 7813, as it pertains to tinea unguium. The ratings under Diagnostic Codes 7813 and 7820 are the same, as noted above. As discussed below, the predominant disability of the Veteran's onychomycosis of the bilateral great toes is dermatitis.

Diagnostic Code 7806 provides that a 0 percent rating is warranted for dermatitis or eczema that involves less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating is warranted for dermatitis or eczema that involves 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 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. A 30 percent rating is warranted for dermatitis or eczema that involves 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 the past 12-month period. A 60 percent rating is warranted for dermatitis or eczema that involves 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 the past 12-month period. 38 C.F.R. § 4.118 .

The Federal Circuit Court has held that systemic therapy means "treatment pertaining to or affecting the body as a whole," whereas topical therapy means treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied, and that nothing in Diagnostic Code 7806 displaces the accepted understandings of systemic therapy and topical therapy to permit a topical therapy that affects "only the area to which it is applied" to count as a systemic therapy under that code. The use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. The use of topical corticosteroids does not automatically mean systemic therapy because Diagnostic Code 7806 distinguishes between systemic and topical therapy. Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017).  

Initially, the Board notes that the Veteran has several other disabilities of the feet, including the separately service-connected ingrown toenails of the bilateral great toes, rated 10 percent disabling for each great toe. He also has non-service-connected foot disabilities to include congenital pes planus and plantar fasciitis. Symptoms from these other disabilities will not be considered when evaluating the service-connected onychomycosis of the bilateral great toes. 38 C.F.R. § 4.14.

VA outpatient treatment records dated from 2010 to 2012 reflect that in September 2010, prior to the rating period on appeal, the Veteran was currently taking Lamisil 250 milligrams prescribed by a private medical provider. On examination, his skin was clear without rash or ecchymosis.

On VA examination in March 2012, it was noted that the Veteran had injured both great toenails in basic training and had continued to have problems with them ever since. He had undergone multiple procedures on each one, and once had a severe infection in the right toenail that took multiple courses of antibiotics and months to heal. Currently, he had pain, deformity, and a chronic fungal infection for which he took oral Lamisil for several months. He was not currently using any medications for this condition. On examination, he had dystrophic, thickened, friable toenails with tender beds in bilateral great toes. The total body area affected was less than 5 percent, and no exposed areas of the skin (face, neck and hands) were affected.

His toenail condition did not impact his ability to work. The diagnosis was onychomycosis, bilateral great toes.

VA medical records reflect that in October 2012 and February 2013 he was a full-time student working on his master's degree in business, and in May 2013 he was working as an insurance salesman. 

In his August 2013 substantive appeal, the Veteran contended that a 10 percent rating should be assigned for his onychomycosis of the bilateral great toes, because he had been prescribed medication for the infections and pain. 

Private medical records from Peak Vista dated from April to May 2015 reflect treatment for great toenail complaints. In April 2015, an examination showed onycholysis (separation of the nail plate from the nail bed) of the bilateral great toes. He was diagnosed with ingrown nails, and was referred to a podiatrist for possible great toenail removal.

A private medical record from Academy Heights Foot Clinic dated in April 2015 reflects that the Veteran complained of bilateral ingrown great toenails that had been removed 4-5 times, but grew back and caused pain. He said he was given medication by another medical provider, but it did not go away. He said he ripped them out himself. The examiner diagnosed congenital pes planus, onychomycosis, and foot pain. The Veteran was casted for orthotics in May 2015.

At an August 2015 Board hearing, the Veteran testified that he rarely wore shoes because his feet hurt so much and said the pressure from the shoes on his toenails was painful. He testified that it was also uncomfortable to walk. He stated that he  constantly had pain, swelling, and infections. He believed that his athlete's foot condition was related to it, and he had pus, bleeding, and pain. He reported receiving private medical care for his toenails, and said his private medical provider trimmed his great toenails monthly. He said that he had previously had the nails removed multiple times. Recently, his right great toenail fell off when the provider clipped it. He related that he had new orthotics for shoes, which were helpful, but it still felt better not to wear shoes. The Veteran said that he had been laid off from work as a driver, but was looking for work. He reported that his toenail disability had negatively affected his ability to drive. He stated that one of the reasons he started getting an education was because he knew he would have to stop driving because of the pain in the great toes. He asserted that the toe disabilities affected his entire feet. He took cyclobenzaprine as needed, and Motrin or acetaminophen. He said he was sometimes lethargic and had fevers, and that Dr. L. told him that it was probably because his body was constantly fighting an infection. He testified that he was not currently taking any corticosteroids or other medication. He previously took oral Lamisil for 6 months in 2013, but was not currently taking it because he could not afford the medication. He stated that he also had plantar warts, and his representative noted that his medical records showed he had congenital pes planus (flat feet). The Veteran asserted that his toenail symptoms were connected with the pes planus. In 2013 he was seen at Peak Vista, by his primary care physician, and was currently seen at a private foot clinic. 

A private medical record dated on August 20, 2015 from Peak Vista shows that the Veteran was diagnosed with onychomycosis and was prescribed Lamisil for this condition. He was also diagnosed with ingrown toenail and bilateral flat feet. He wore orthotics for his flat feet. He also complained of pain in the bilateral great toes. On examination, there was pain in the left great toe, and right great toe pain and swelling.

In September 2015, the Veteran submitted two Disability Benefits Questionnaires (DBQs), one for ingrown toenails, and one for the skin disorder. On the form for the ingrown toenails, it was noted that the Veteran had chronic recurring ingrown great toenails. The Veteran said it was painful to walk and he had numbness at times. Pain on use/manipulation was indicated and the examiner indicated that there was swelling when the toenails were infected or ingrown. The Veteran had a decreased longitudinal arch height on weight bearing, there was marked deformity, marked pronation of the feet, and the weight bearing line fell over or was medial to the great toes. There was no nail on the right toenail, and a 1.5 by .2 centimeter scar and deformity from incision and drainage. There was pain on movement, weight-bearing, swelling, and deformity, bilaterally. Employment was affected with regard to walking and prolonged standing. Associated symptoms included decreased mobility, decreased sleep, joint tenderness, limping, nocturnal pain, numbness, and pain. The physician assistant indicated that the Veteran had previously undergone toenail removal of both great toenails, as well as incision and drainage of infection of the right great toenail.

While the September 2015 DBQ as to the Veteran's ingrown toenail, right and left great toes described the disability in sufficient detail, the DBQ also discussed the Veteran's pes planus, which is not service-connected. The DBQ report reserved a specific portion to discuss symptomatology only related to pes planus, and the examiner completed such; however, the DBQ report also reserved a specific portion to discuss pain and function, and the examiner appears to have completed such considering the Veteran's service-connected ingrown toenail, right and left great toes and his non-service-connected pes planus. The examiner noted that the Veteran was taking Lamisil, an oral medication, for onychomycosis. He indicated that onychomycosis of the bilateral great toenails affected less than 5 percent of total body area, and less than 5 percent of exposed areas. The examiner opined that the Veteran's ingrown toenails caused pain and secondary skin infection and impacted his ability to work.

In April 2016, the Veteran was afforded another VA examination because the DBQ form and the private records appeared to indicate symptoms that were due to other foot disabilities, such the Veteran's pes planus. Thus, a new examination was needed to delineate the symptoms related to the great toes (or as indicated otherwise). On examination, it was noted that the Veteran also had pes planus and plantar fasciitis.

On VA examination of the feet in April 2016, the Veteran reported that he had constant pain in both great toes, and pain with any pressure on his toenails in the great toes. He wore either flip flops or open toe slippers which did not place any direct pressure on his toenails. He states his current job allowed him to wear slippers or Crocs once he was at work. He reported intermittent episodes of swelling, redness and warmth in the great toenails with episodes of "infection," and episodes of pus and bleeding. The examiner observed that a review of the available medical records did not document any recent episodes of paronychia and the Veteran was unable to give an exact date of last episode of pus, bleeding, redness, or warmth in either great toe. Symptoms due to onychomycosis of bilateral great toenails were reported as chronic symptoms of disfigurement of both great toenails, stating that the toenails were thickened and discolored (whitish yellow on mid to outer aspects; greenish blue discoloration in proximal areas). The Veteran stated that the nails constantly cracked off in pieces or broke off randomly. Other times the entire nail came off the nailbed. He also reported symptoms of lethargy and occasional fevers which he stated he was told by his foot doctor was because his body was constantly fighting infections in his toenails. With regard to the functional limitations due to bilateral onychomycosis of great toenails, the examiner noted that although the Veteran complained of daily constant pain in both great toes; however, the description of pain given above was not solely from the onychomycosis condition. The examiner stated that it is reasonable to expect that direct pressure on great toenails from closed toe shoe gear would result in localized pain to the great toes. Prolonged wearing of closed toe shoes when standing/walking would also be a reasonable expectation of pain in the great toenails and first digits of both feet. His current occupation was a sedentary position and he had been granted the ability to remove his closed toe shoes while performing his work duties and wear open-toed shoe gear. 

The examiner opined that the degree of pain that was described by the Veteran was out of proportion to this condition as well as to the physical examination findings. Functionally, he would be able to perform his sedentary employment with the modifications described. In regards to duties at home or with recreation: he would be able to wear shoe gear of his choosing in those situations that provide the most comfort to him. The examiner opined that the overall severity in regards to function was mild. With regard to the issue of deformity, both great toenails did exhibit significant deformity that was primarily cosmetic in nature. The deformity did not affect his ability to don any type of shoe gear due to the physical appearance of either great toenail. It was reasonable to expect that this cosmetic deformity could cause embarrassment to the Veteran. The examiner opined that there were no musculoskeletal abnormalities due to this condition. Treatments for this condition have included oral antifungal medication (Lamisil) in short courses; the most recent was in August 2015 for 3-4 months and trimming of his toenails by a podiatrist every few months. The Veteran stated that he had been instructed by the podiatrist on how to trim his nails on a regular basis which he did perform with special nail clippers he received from the podiatrist. He states soaked his feet in warm water and Epsom salts for 10-15 minutes prior to trimming his nails. He also took Tylenol and Motrin OTC daily for his foot pain symptoms. He stated that he has also been prescribed Flexeril (cyclobenzaprine), but the examiner stated that this was not a treatment typical for foot pain, and noted that the Veteran had chronic lower back and knee conditions which was more likely than not why he had been prescribed Flexeril. His podiatrist did not prescribe Flexeril for foot complaints. 

He has not had any steroid injections, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for treatment of this condition. The Veteran stated that he was prescribed custom orthotics for his toenail condition which he used on a regular basis in closed toe shoe gear only; however, the medical record clearly documents he was prescribed orthotics for his pes planus condition. It is less likely than not that the additional foot pain complaints affecting the soles of both feet (symptomatic pes planus and plantar fasciitis of both feet) are proximately due to either the onychomycosis condition or ingrown toenail condition. The condition of pes planus and plantar fasciitis are separate conditions that are not related to these other conditions. It is less likely than not that the additional foot pain complaints affecting the soles of both feet (symptomatic pes planus and plantar fasciitis of both feet) were aggravated due to either the onychomycosis condition or ingrown toenail condition. The description of foot pain affecting the soles of both feet is less likely than not due to the conditions affecting either great toe. Both the onychomycosis condition and episodic ingrown toenail condition would not be a source of pain to affect the soles of either foot. The examiner indicated that the condition of onychomycosis is typically a localized infection of the affected toenail. In certain cases this type of condition could become more serious and spread to other areas but typically this only occurs in cases of individuals with suppressed immune systems (either due to medications, diabetes or other chronic illnesses), citing the Mayo Clinic. The examiner stated that the Veteran does not have any immunosuppressive conditions nor is he taking any medications that suppress his immune system. Additionally, there is no documentation of any systemic or secondary infections due to his onychomycosis or ingrown toenail conditions. The Veteran's congenital condition of pes planus and plantar fasciitis are the most likely source of the pain affecting the soles of his feet which are not related to his onychomycosis or ingrown toenail condition. Additionally, both the onychomycosis and ingrown toenail conditions do not exhibit any aggravation but rather represent the chronic nature of both of these conditions as well as the fact that onychomycosis is a difficult condition to treat and eradicate. The examiner noted that the National Institute of Health indicated that dermatophytoses of the fingernails and toenails, in contrast to those at other body sites, are particularly difficult to eradicate with drug treatment. This is the consequence of factors intrinsic to the nail-the hard, protective nail plate, sequestration of pathogens between the nail bed and plate, and slow growth of the nail-as well as of the relatively poor efficacy of the early pharmacologic agents. Finally, the examiner indicated that with regard to the complaints of lethargy and fever reported by the Veteran that he attributed to his foot infections, it was less likely than not that these subjective reports are due to episodic ingrown toenails, paronychia or onychomycosis. There is no evidence of any acute infections affecting either great toe, and no evidence of acute cellulitis or other systemic involvement in the documented records or in recent medical evaluations that would lend credible support of any systemic infectious process. Additionally, as noted above onychomycosis is a localized infection of the nail itself and rarely causes systemic infection. 

At an April 2016 VA skin examination of the feet, the examiner diagnosed onychomycosis of bilateral great toenails, and onychocryptosis (ingrown toenail) of bilateral great toenails. The examiner summarized pertinent medical records, including private medical records. On examination, there was scarring on the right great toe on the distal aspect of the digit on the outer aspect which measured 1.5 cm. by 0.1 cm. The examiner indicated that the Veteran used orthotics due to bilateral pes planus and plantar fasciitis. Photographs of the great toes were provided which showed deformed and incomplete great toenails. The examiner stated that the Veteran had been treated with oral or topical medications in the past 12 months for a skin condition; specifically, he took oral Lamisil 250 mg daily for onychomycosis, for 6 weeks or more, but not constantly. On examination, he had infection of the skin that affected a total body area of 5 percent to less than 20 percent, and affected no exposed areas. The examiner stated that the right great toenail had a mycotic appearance of thick, jagged texture and abnormal size of nail, discoloration of yellowish to greenish color, intact to nailbed, and was tender with direct palpation. The skin surrounding the nail was within normal limits: warm, dry, intact; no erythema or swelling; and no evidence of any current ingrown nail. The left great toenail had a mycotic appearance of thickened, irregular texture; large "V" shaped absence in nail in center of distal nail with noticeable detachment from the nail bed; discoloration: yellowish white on distal aspect of nails, greenish black discoloration noted at proximal aspect of nail; tender with direct palpation. The skin surrounding the nail was within normal limits: warm, dry, intact; no erythema or swelling; no evidence of any current ingrown nail. There was no current evidence of ingrown toenails affecting either great toenail, the remaining nails of both feet were within normal appearance with no evidence of any fungal infection or ingrown toenails. With regard to the ingrown toenail condition, the total surface area was 0 percent and total exposed area was 0 percent. The Veteran was currently working on a full-time basis as a payroll technician. In the past 12 months he missed one day of duty due to a viral medical condition. He denied any hospitalizations or surgeries in the past 12 months. He had no impairment of performing his activities of daily living: he was fully capable of cooking, eating, bathing, dressing/undressing, personal hygiene, toileting, writing and driving without assistance. His exercise limitations were primarily determined by his onychomycosis and ingrown toenail conditions, and are as follows: walking limited to 500 feet, standing limited to 10 minutes, and sitting unlimited. He reported an altered gait and slight limp. He reported the use of an assistive device, orthotics on a regular basis and cane as needed (during prolonged walking). 

As noted above, service-connected onychomycosis of the bilateral great toes has been rated as noncompensable prior to April 4, 2016, and as 30 percent disabling from that date.

The Board acknowledges the holding in Warren v. McDonald, 28 Vet. App. 194, 197 (2016), that compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs. The Court found that there was evidence in the record in that case that Lamisil was a systemic therapy.

Here, an August 20, 2015 private medical record shows that the Veteran was prescribed oral Lamisil for his onychomycosis of the bilateral great toes, as does the DBQ completed by a private medical provider and submitted by the Veteran in September 2015, and the April 2016 VA examiner indicated that treatments for this condition have included oral antifungal medication (Lamisil) in short courses, most recently in August 2015 for 3-4 months.

The Board has reviewed all of the evidence of record, and finds that from August 20, 2015 to April 4, 2016, a higher 30 percent rating is warranted for service-connected onychomycosis of the bilateral great toes based on use of oral Lamisil, a systemic medication to treat this condition. The evidence shows that from that date, systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12-month period.

However, during the period prior to August 20, 2015, a rating in excess of 0 percent is not warranted. The criteria for a higher 10 percent evaluation, the next higher rating available under Diagnostic Code 7806 based on the total area affected, are not met because the record does not show that 5 to 20 percent of the entire body or 5 to 20 percent of exposed areas were affected. See 38 C.F.R. § 4.118. At the March 2012 VA examination, the total body area affected was less than 5 percent, and no exposed areas of the skin were affected. Moreover, the preponderance of the evidence during this period does not show that he took any systemic medication for this condition. He previously took Lamisil in 2010, prior to the appeal period, and denied taking any medication at the March 2012 VA examination. Although the Veteran testified at his hearing in 2015 that he took Lamisil in 2013, the VA and private medical records do not confirm this statement. The Board finds that the medical evidence of record is more probative than his statement in this regard.

He also does not qualify for a higher 30 percent evaluation during this period under Diagnostic Code 7806 based on the total area affected, because the record does not show that 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas were affected, and he is not shown to have used systemic therapy during this period. See 38 C.F.R. § 4.118. Similarly, even higher ratings are not warranted under this code as the requisite area of the body is not affected, and he is not shown to have used systemic therapy during this period.

In addition, although the Veteran has residual scarring on the right great toe, it is not symptomatic or compensable. See 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. The scarring is not deep, non-linear, or measures an area or areas of 144 square inches or more, nor is the scarring unstable, painful, or productive of any functional impairment.

A higher rating is also not warranted under any other potentially applicable Diagnostic Code. Diagnostic Code 7800, pertaining to disfigurement of the head, face, or neck, is inapplicable, as the service-connected toenail condition does not affect the head, face, or neck. 38 C.F.R. § 4.118 . 

During the period from August 20, 2015, the Board finds that the criteria for a higher 60 percent rating are not met under Diagnostic Code 7806, as the weight of the evidence does not show dermatitis or eczema that involves 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 the past 12-month period.

Based upon the record, the Board finds that at no time during the appeal period has the service-connected onychomycosis been more disabling than as currently rated under the present decision of the Board. 

The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321 (b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology related to his bilateral onychomycosis. He has reported no time lost from work for this condition, and the examination results indicate that the Veteran does not have systemic symptoms. The evidence shows that he is working on a full-time basis, and prior to that he was working and was a student. His disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. Thun v. Peake, 22 Vet. App. 111, 118 (2008); see also Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). Consequently, referral for extraschedular consideration is not warranted. 

In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, since the preponderance of the evidence is against the claim for a higher rating for the Veteran's bilateral onychomycosis during the period prior to August 20, 2015, and after April 4, 2016, that doctrine is not applicable during these periods. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364  (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). The doctrine was applied in the grant of a higher rating during the intervening period.

ORDER

Prior to August 20, 2015, a higher compensable rating for onychomycosis of the great toes is denied.

From August 20, 2015 to April 4, 2016, a higher 30 percent rating for onychomycosis of the bilateral great toes is granted.

From April 4, 2016, a rating in excess of 30 percent for onychomycosis of the bilateral great toes is denied.




S. L. Kennedy 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs