Citation Nr: 1800506	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-08 514	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, Massachusetts


THE ISSUE

Entitlement to a compensable disability rating for bilateral onycomycosis.


REPRESENTATION

The Veteran represented by:  Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

P. Franke, Associate Counsel


INTRODUCTION

The Veteran had active service in the United States Army from September 2009 to July 2010.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  Jurisdiction has since resided with the RO in Boston, Massachusetts.  The matter is before the Board for the first time.

The Veteran was afforded a videoconference hearing in April 2017 before the undersigned Veterans Law Judge.  The transcript is associated with the claims file.

The record indicates that the March 2011 rating decision also granted service connection for allergic rhinitis at a 0 percent disability rating, which the Veteran appealed, seeking a compensable disability rating.  However, a May 2014 rating decision granted a compensable disability rating of 30 percent from July3, 2010, the date of the Veteran's original claim.  A 30 percent rating is the maximum rating assignable for allergic rhinitis under Diagnostic Code 6522.  See 38 C.F.R. § 4.97 (2017).  Under these circumstances, there are no further possible entitlements for this claim under the law.  Additionally, the Board notes that the record does not contain submissions by the Veteran of a notice of disagreement with the May 2014 rating decision or a subsequent VA Appeals Form 9.  The Veteran has received the maximum benefit possible for this claim and the matter is no longer before the Board.

Service connection has been granted for the foot disorder at issue.  At the hearing the Veteran has asserted that he has skin disability of other areas of the body.  If he desires to file a claim for service connection of a generalized skin disorder, he and his representative may do so by filing the proper forms at the RO.

This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager Documents (LCMD) (formerly Virtual VA) electronic claims files.  
FINDING OF FACT

Throughout the period of the claim, the Veteran's onychomycosis of the toenails has affected less than five percent of his total body area and of his exposed body area.


CONCLUSION OF LAW

The criteria for a compensable rating for chronic onychomycosis of the have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7806 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist 

The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary.  38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions.  

The Veteran was afforded Compensation and Pension examinations in April 2014 and February 2011.  They resulted in findings pertinent to deciding the claim for entitlement to a compensable rating for bilateral onycomycosis.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007).  The Board finds the examinations adequate for their purposes.  

Moreover, 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).

Increased Schedular Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4.  Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder.  38 U.S.C. § 1155.  The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder.  38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Evidence to be considered in an appeal from an initial disability rating is not limited to current severity, but will include the entire period of the disorder.  Additionally, it is possible for a veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts.  See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

Lay Evidence 

Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).  Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The Veteran's Assertions

The Veteran contends in his April 2017 Board hearing testimony that he developed a fungal infection of his great toenail in service and symptoms of itching and bleeding upon scratching are now prevalent and permanent on both his legs, but these symptoms have spread periodically to his crotch and torso.  The Veteran further contends that the skin irritation and infection are associated with his original service-connected toenail fungus.  He adds that he has been prescribed corticosteroids, which he uses as needed, but regularly.  He asserts that the total body area affected is at least 20 percent.  The Veteran further asserts that his physician has told him that the lipoma (a mass under the skin) he had removed by surgery is related to his service-connected disorder.  (As noted, service connection is only in effect for the foot pathology at this time.)

Bilateral onycomycosis

Under Diagnostic Code 7806, a noncompensable rating is warranted where less than 5 percent of the entire body or less than 5 percent of exposed areas are affected, and; no more than topical therapy was required during the past 12-month period.  A 10 percent rating will be assigned where 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 are affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period.  A 30 percent rating is warranted where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; 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.  A 60 percent rating is warranted where more than 40 percent of the entire body or more than 40 percent of the exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period.  38 C.F.R. § 4.118.

In February 2011, the Veteran underwent a VA examination at Manchester VA for skin diseases, specifically nail onychomycosis.  The Veteran was diagnosed with bilateral onychomycosis of the great toenails.  A physical examination revealed less than 5 percent chronic onychomycosis on both great toenails, apparently due to the use of army boots in in service which caused excess moisture during wear.  

In April 2014, the Veteran again presented for a VA examination for skin diseases, in which the VA examiner re-stated a May 2009 diagnosis of bilateral onycomycosis and added urticaria (hives).  The April 2014 VA examiner noted that the Veteran used antifungal topical medication and the Veteran's reports of fungus spreading from several nails of the left foot to all 10 toes.  Upon physical examination, the April 2014 VA examiner found that the approximate total body area affected was less than 5 percent and the approximate total exposed body area was also less than 5 percent.  She added that the Veteran's ability to work is affected as he is unable "to walk or run with the boot/shoe."  She specifically diagnosed the Veteran with two great toenails with fungus infection and a left small nail with fungus infection.  

The record further indicates that in May 2016, the Veteran presented for treatment of subcutaneous nodules, culminating in an August 2016 surgical procedure Jamaica Plain VA to remove a mass under his skin (lipoma) in the anterior chest area.

As stated above, in the two VA examinations afforded the Veteran, both the February 2011 VA examiner and the April 2014 VA examiner found less than 5 percent of the Veteran's person overall and those portions which are exposed to be affected by onychomycosis.  Moreover, the April 2014 VA examiner noted the use of topical antifungal medication for treatment in the previous 12 months.  The findings of each examination are consistent with one another.  Under Diagnostic Code 7806, as set forth above, there is no basis on which to grant a compensable rating.  Additionally, beyond toes, toenails and feet, neither VA examiner identified symptoms which extended to and affected other parts of the body. 

The Board has carefully reviewed and considered the Veteran's testimony in his April 2017 Board hearing, as well as his reports during examinations, as they appear throughout the record.  The Board is well aware of the Veteran's assertion that his current skin irritation over much of his person is related to his service-connected toenail fungus.  However, the Board does not see in the record findings, an opinion or a statement by any treatment provider to that effect, as well as any findings or statement that the lipoma he had removed in August 2016 is related.  As noted, if the Veteran desires to file a separate claim for service connection for a generalized skin disorder he is free to do so.  Significantly none of the pertinent VA records reveal that steroids were assigned for the foot disorder.

As stated earlier in this decision, lay people are competent to report on matters observed or within their personal knowledge.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994).  Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility.  However, the Board must emphasize that the Veteran is not competent to diagnose or interpret accurately the clinical nature and origins of his current skin irritation, as this requires highly specialized knowledge and training.  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

Moreover, the Board cannot render its own independent medical judgments; it does not have the expertise.  Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).  The Board must look to the clinical evidence when there are contradictory findings or statements inconsistent with the record.  In the absence of explicit indications of worsening signs and symptoms, it must rely on medical findings and opinions to establish the level of the Veteran's current disability.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997).   

The findings and opinions of the April 2014 and February 2011 VA examiners are based on clinical observations upon examination and accurate characterizations of the evidence of record.  The Board finds they are entitled to substantial probative weight.

For the reasons stated, and based on the findings and diagnoses of the April 2014 and February 2011 VA examiners, the Board further finds the record does not contain supporting medical findings, an adequate opinion or related factors to indicate the criteria for a compensable disability rating under Diagnostic Code 7806, with consideration of related diagnostic codes for rating purposes, or which indicate that the assigned rating schedule is inadequate and does not reasonably contemplate the level of severity and symptomatology of the Veteran's service-connected disability. 

The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence.  The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied.  38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3.


ORDER

Entitlement to a compensable disability rating for bilateral onycomycosis is denied.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs