Citation Nr: 1800958 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 04-38 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE 1. Entitlement to an initial rating in excess of 10 percent for service-connected tinea pedis with onychomycosis, claimed as a foot infection, to include on an extraschedular basis. 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Elizabeth Jamison, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from December 1975 to December 1978. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which in relevant part, granted entitlement to service connection for tinea pedis and assigned a 10 percent evaluation effective March 13, 2003. The Veteran submitted a notice of disagreement (NOD) in February 2008, requesting an increase in the disability evaluation for the tinea pedis. A statement of the case (SOC) was issued in July 2009. A timely substantive appeal was received in March 2010. Subsequent supplemental SOCs continued the 10 percent evaluation for the foot condition. In March 2011, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during a travel Board hearing; a transcript of the proceeding is of record. In June 2011, the Board remanded the claim to the agency of original jurisdiction (AOJ) for additional development. A September 2017 supplemental SOC continued the denial of a rating in excess of 10 percent. The Board notes that a claim of entitlement to service connection for a left thigh muscle tear was referred in June 2011. Subsequently, a May 2017 rating decision denied the claim and a NOD has not been received. Accordingly, this issue is not appropriate for appellate review. Similarly, a September 2017 rating decision granted a total disability rating based upon individual unemployability (TDIU) effective March 1, 2013, followed by a 100 percent rating for the Veteran's left knee disability. As this was a full grant of the benefits sought on appeal, these issues are no longer in appellate status. However, the Court has held that a claim for a TDIU is an element of a claim for a higher initial rating or increased rating when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). For the reasons indicated below, the Board finds that the issue of entitlement to a TDIU has been raised as part and parcel of the claim for an initial rating higher than 10 percent for tinea pedis. Id. Therefore, the Board will consider the Veteran's entitlement to a TDIU prior to March 1, 2013 (the effective date of the existing TDIU rating). This appeal was processed using the Virtual Benefits Management System (VBMS) and Legacy Content Manager (formerly Virtual VA) paperless claims processing systems. FINDINGS OF FACT 1. The Veteran's service-connected tinea pedis and onychomycosis, status post removal of both large toenails, is shown to have been productive of complaints of pain and itching; the condition does not impact at least 20 percent of the entire body or the exposed areas affected or require treatment involving systemic therapy. 2. Resolving all reasonable doubt in the Veteran's favor, he was unable to secure or follow a substantially gainful occupation as a result of his service-connected tinea pedis and onychomycosis as of May 21, 2010. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for service-connected tinea pedis with onychomycosis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1-4.10, 4.118, Diagnostic Codes 7806, 7813 (2017). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for a TDIU are met as of May 21, 2010. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Board notes that the Veteran's disagreement is with the initial rating assigned following the grant of service connection for tinea pedis. VA's General Counsel held that no further VCAA notice is required for downstream issues such as a veteran's appeal with respect to the propriety of the initially assigned rating stemming from the original grant of service connection. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the United States Court of Appeals for Veterans Claims (Court) held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess/Hartman, 19 Vet. App. 473 (2006). As the Veteran in this case has appealed with respect to the initially assigned rating, additional VCAA notice is not required because the purpose the notice is intended to serve has been fulfilled. Harman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The record reflects that VA has made reasonable efforts to obtain or assist in obtaining the records relevant to the matter decided herein. The pertinent evidence associated with the claims consists of the service treatment records, post-service private and VA treatment records, Social Security Administration records, and lay statements from the Veteran and various acquaintances. Here, VA has adequately discharged its duty to locate records and afforded the Veteran notice and opportunity to submit any identified records that may be in his possession. The Veteran has not identified any outstanding records that have not been requested or obtained. The Board therefore finds that VA has met its duty to assist in obtaining the relevant records. The Board also finds there has been substantial compliance with the June 2011 remand directives. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In summary, the duties imposed by the VCAA have been considered and satisfied. There is no additional notice that should be provided, nor is there any indication of further existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Thus, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided. See Mayfield v. Nicholson, 20 Vet. App. 539, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Increased Rating The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claim. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). General rating principles Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 and reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; 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; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.2, 4.3, 4.7, 4.10. For an initial rating claim, consideration will be given to "staged ratings" since service connection was made effective. See Fenderson v. West, 12 Vet. App. 119 (1999). In other words, where the evidence contains factual findings demonstrating distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of a staged rating would be necessary. Id. Increased rating for tinea pedis with onychomycosis The Veteran has been variously diagnosed with tinea pedis, athlete's foot, and onychomycosis. The condition is currently rated as 10 percent disabling under Diagnostic Code 7813-7806. In this case, the RO hyphenated the Diagnostic Codes to represent the primary components of the Veteran's disability. Tinea pedis is rated under Diagnostic Code 7813, which instructs that the condition be rated as disfigurement or scars using Diagnostic Codes 7800-7801 or dermatitis or eczema under Diagnostic Code 7806, depending on the predominant disability. Under Diagnostic Code 7806, which evaluates dermatitis or eczema, a 30 percent rating is assigned 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 the past 12 month period. A 60 percent rating is assigned for 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, Diagnostic Code 7806. It also provides that the skin condition can be rated based on disfigurement of the head, face, or neck (Diagnostic Code 7800) or as a scar under Diagnostic Codes 7801-7805. Id. The Board will not set out the rating criteria for Diagnostic Codes 7800-7805 in their entirety herein. However, the criteria have been reviewed and considered. As the discussion of the medical evidence will show, the Veteran's foot condition does not have any of the disfiguring features of Diagnostic Code 7800, does not have the features required of other Diagnostic Codes, and would not warrant ratings higher than the current 10 percent evaluation under these criteria based on the characteristics and size of the involvement. Thus, rating for scarring is not beneficial to the Veteran; the condition is rated under the predominant disability of tinea pedis utilizing Diagnostic Code 7806. Turning to the evidence of record, an August 2003 treatment note indicated the presence of athlete's foot, with dry, scaly skin and cracking between on the toes on both feet. The care provider noted alteration in skin integrity and prescribed tolnaftate cream. The Veteran was afforded a VA examination in June 2007. He reported intermittent flare-ups (approximately twice a month lasting up to one week) of athlete's foot since his time in service. He also reported current use of Desenex and soaking his feet in bleach and water. The Veteran stated that the disease was fairly stable since the original diagnosis in 1978. Symptoms included odor, sweating, itching, and soreness. Upon physical examination, the examiner noted chronic tinea pedis with scaling serpiginous borders, odor, hyperpigmentation, and scarring. The examiner reported that the condition was contained to the feet; therefore the exposed body surface area was zero percent while the total body area was less than five percent. VA treatment records from June 2008 reflect a dermatology note. The care provider indicated interdigital maceration was present in the bilateral feet with loose, dry, scaly skin suggestive of previous fungal infection. Toenails were described as thick, yellow, crumbly, and painful upon palpation. The resulting diagnoses were tinea pedis and onychomycosis. The Veteran was instructed to continue Lamisil and keep his feet dry by changing socks frequently and alternating shoe gear. In November 2008, the Veteran submitted a statement in which he described cracking of the skin, sweating, itching, burning, hardening of the nails, soreness of feet and nails, bad odor, trouble walking at times, and use of special shoes. Current medications reported included Betadine Solution Swalestick and cortisone cream. He stated that his overall concern was the soreness, itching, and odor. In December 2008, Ms. H. (a friend of the Veteran) submitted a statement in which she described the Veteran's severe foot trouble due to what she termed athlete's feet. She relayed the Veteran's complaints of a constant itch, soreness, foul odor of his feet and trouble walking. Mrs. H. also noted that the Veteran's medication did not seem to aid his condition and that he often had to ask for her help with housework due to trouble standing for long periods. In December 2008, a private treatment record indicated that the Veteran was prescribed clotrimazole cream to apply to the affected areas twice daily for the next two weeks. The Veteran underwent further VA examination in December 2008. He reported chronic recurrent athlete's feet or tinea pedis that reoccurred despite treatment. He denied pain or discomfort except for some itching once in a while. Review of the records revealed to the examiner that the Veteran was diagnosed with tinea pedis and onychomycosis and treated with oral Lamisil for greater than three months with improvement. Following physical examination, the examiner noted that the skin was intact without any swelling, erythema, or ecchymosis. There was some maceration and scaling of the second left interdigital space only. The examiner found evidence of onychomycosis of the great toes and the little toes. His final assessment was chronic recurrent tinea pedis (not eczema) that was stable without disability. In a January 2009 statement, the Veteran disputed the findings of the December 2008 examination report. He stated that the condition was on-going and worsening; he clarified that while he was not experiencing pain or discomfort at the time of the examination, he did experience pain and discomfort due to the condition at other times. The Veteran described wearing shoes two to three inches longer than necessary due to lesions on his feet, which he felt would mask any altered gait. The Veteran submitted an additional statement in April 2009, in which he further described the effects of the condition. He reported soreness in his feet keeping him from most daily activities, as well as hardening toenails. A private treatment record from April 2009 instructed the Veteran to treat the condition with microguard powder and apply daily Lamisil. In March 2010, private treatment records indicate that the Veteran underwent a matrixectomy (partial nail removal) on his bilateral large toes. In his March 2011 testimony to the Board, the Veteran described removal of both large toenails, scaling between his toes bilaterally, bad odor, itching, swelling, and scratchiness. He reported that the condition was painful and caused him to wear special shoes. He further reported that the surgery did not help; he would continue with medications. He denied use of steroids and confirmed use of cortisone creams. VA treatment records from May 2013 contain a dermatology report of thick, yellow, crumbly, and painful nails on the bilateral feet. The nails on the fifth digits of the feet were debrided to decrease pain and avoid paronychia and complications secondary to diabetes and neuropathy. The care provider noted the treatment of onychomycosis including topical and oral medications, including ketoconazole cream. In July 2015, VA treatment records reflect the Veteran's complaints of itching, painful toes bilaterally. He denied any other pedal complaints. The care provider cleaned out the interspaces on both feet and applied betadine to both feet to help dry the area. The Veteran was instructed to use betadine every three to four days to reduce moisture. Toe separators were recommended for both feet to reduce moisture levels. Oral Lamisil was not prescribed due to liver problems. The Veteran underwent further VA examination in August 2015. The examiner noted diagnoses of tinea pedis and onychomycosis of the toe nails and reported treatment with oral or topical medications, including constant/near-constant application of Ketoconazole topical ointment. The approximate total body area affected was less than five percent; likewise, the approximate total exposed area was less than five percent. After review of treatment records and physical examination of the Veteran, the examiner concluded that the tinea pedis symptoms had increased in severity. Another VA examination was conducted in December 2015. The Veteran reported current use of ketoconazole and iodine. He indicated that the condition would resolve for a few days and then return, with worsened symptoms in the summer. The Veteran denied pain and functional impact from his foot condition. The examiner categorized the severity of the tinea pedis as mild. No scars related to the condition were reported. VA treatment records continue to reflect treatment for the tinea pedis and onychomycosis. In October 2016, a dermatology note indicated that the interdigital spaces were dry with no maceration, but the toenails were long, thick, painful, and dystrophic. Ketoconazole was prescribed. After thorough review of the evidence of record, the Board finds that the current evaluation of 10 percent for the Veteran's tinea pedis with onychomycosis is warranted; a higher rating is not supported during the relevant period. As noted above, the next higher rating of 30 percent under Diagnostic Code 7806 requires that the condition affect 20 to 40 percent of the entire body or the exposed area, or systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of six weeks or more, but not constantly during the past 12 month period. Significantly, the June 2007 and August 2015 VA examination reports stated that the Veteran's foot condition affected approximately less than five percent of his exposed skin area and less than five percent of his total skin area. The December 2008 VA examiner concluded that the chronic recurrent tinea pedis was stable without disability. Similarly, the December 2015 VA examiner categorized the Veteran's foot condition as mild in severity. The Board notes that the August 2015 VA examiner stated that the Veteran's symptoms had increased in severity. However, her objective reporting included a conclusion that less less than five percent of his exposed skin area and less than five percent of his total skin area was affected by the athlete's foot/tinea pedis. Such a finding would support a non-compensable evaluation under Diagnostic Code 7806, which requires at least five percent of exposed or total areas affected for a compensable rating. After reviewing the totality of the evidence during the period on appeal, the Board finds that the Veteran's condition most nearly approximated the criteria warranting a 10 percent evaluation. The Board has considered whether the Veteran's various topical medications warrant a higher rating. Reviewing the evidence in light of the recent Federal Circuit decision supports a finding that the Veteran's use of topical medications is not so extensive to more nearly approximate systemic therapy. See Johnson v. Shulkin, 2016-2144, 2017 U.S. App. LEXIS 12601 (Fed. Cir. 2017). In this regard, "systemic" is defined as "pertaining to or affecting the body as a whole." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1865 (32d ed. 2012). It is undisputed that the Veteran's use of topical creams is constant or near-constant. However, this does not qualify as systemic therapy, as it is applied only to the affected areas of the body (i.e. the feet). As the objective evidence of record reflects that this was less than five percent of the Veteran's body, a finding of systemic therapy for topical application of various medications is not warranted. The December 2008 VA examination report indicated that the Veteran utilized oral Lamisil medication for a period of greater than three months; oral use of Lamisil was later discontinued due to liver problems. VA treatment records show that Lamisil tablets were started in April 2008 and discontinued in September 2008. To the extent that the Veteran is shown to have used Lamisil orally, the tablets are used to treat infections caused by fungus that affect the fingernails or toenails; there is no evidence to show that they constitute systemic therapy (treatment pertaining to or affecting the body as a whole). See Johnson. Accordingly, the usage of oral Lamisil tablets does not support assignment of a higher rating. The Board acknowledges that the Veteran is competent to provide evidence about his disability; for example, he is competent to describe symptoms related to his foot condition. See Layno v. Brown, 6 Vet. App. 465 (1994). He is also credible to the extent that he sincerely believes he is entitled to a higher rating. However, he is not competent to identify a specific level of disability according to the appropriate Diagnostic Code. Competent evidence concerning the nature and extent of the Veteran's condition was provided by the VA examiners who have interviewed and evaluated him during the current appeal. The medical findings as provided in the various VA examination reports directly address the criteria under which this disability is evaluated. Thus, the competent lay evidence is outweighed by the competent medical evidence that evaluates the true extent of his disabilities. All potentially applicable Diagnostic Codes have been considered, and there is no basis to assign an evaluation in excess of the rating assigned herein for the Veteran's disability. See Schafrath, 1 Vet. App. at 593. Furthermore, application of criteria other than Diagnostic Codes 7813-7806 is not appropriate, either directly or by analogy. See Suttman v. Brown, 5 Vet. App. 127, 134 (1993) (Where a condition is listed in the schedule, rating by analogy is not appropriate. "An analogous rating . . . may be assigned only where the service-connected condition is 'unlisted.'). In short, the probative evidence of record does not support a finding that the criteria for a 30 percent rating are met. The tinea pedis does not affect 20 percent or more of the entire body or the exposed area and use of systemic therapy to address the condition has not been shown. Accordingly, the Veteran's claim for an initial rating in excess of 10 percent for tinea pedis is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53. Extraschedular consideration In reaching the above conclusion, the Board also has considered whether the Veteran is entitled to an increased level of compensation for his tinea pedis on an extraschedular basis. Ordinarily, the Rating 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). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993); 38 C.F.R. § 3.321(b)(1). To accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether a veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, a veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second inquiry, that is whether a veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the Veteran alleged symptoms including soreness of feet and nails, bad odor, trouble walking at times, and use of larger than normal shoes to allow for circulation. Here, the rating criteria quite accurately describe the disability and the Veteran's symptomatology. The overall disability picture, including skin shedding, crusting and cracking of the skin, itching, pain, and nail problems, are appropriately considered by the rating criteria, and the evidence does not show any impairment not encompassed by the 10 percent rating. As such, the Veteran's disability picture is contemplated by the rating schedule and the schedular rating criteria are adequate to address his symptoms and average impairment of earning capacity. Thun, 22 Vet. App. 111 (2008). Accordingly, the requisite factors under Thun are not present, and referral of the tinea pedis disability for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted in this case. III. Total Disability Rating due to Individual Unemployability Finally, the Board will consider the issue of entitlement to a TDIU prior to March 1, 2013 (the effective date of the existing TDIU rating). See Rice, 22 Vet. App. 447. A total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In the present case, the Veteran first met the schedular criteria for a TDIU on July 24, 2007. After thorough consideration of the record and affording the Veteran the benefit of the doubt, the Board finds that the evidence supports a finding of May 21, 2010 as the date that the Veteran was first precluded from participating in substantially gainful employment consistent with his education, training, and experience due to his service-connected tinea pedis and onychomycosis. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 53. The Veteran was afforded a VA examination in June 2007, during which he reported that the disease was fairly stable since the original diagnosis in 1978. The examiner reported that the condition was contained to the feet affected an exposed body surface area of zero percent and total body area less than five percent. He underwent further VA examination in December 2008. The examiner's final assessment was chronic recurrent tinea pedis that was stable without disability. The Veteran submitted a statement in April 2009, in which he described the effects of the condition, including soreness in his feet keeping him from most daily activities, as well as hardening toenails. The Veteran submitted an Application for Increased Compensation based on Unemployability in July 2009 which listed his bilateral knee disabilities as well as athlete's foot as the conditions preventing his from securing or following gainful employment (a prior application in 2003 contained no reference to a foot condition). Previous employment disclosed on the July 2009 form included loading aircraft, building swimming pools, pouring metal, and working on an assembly line. Subsequently, in May 2010, private treatment records indicate that the Veteran underwent a matrixectomy (partial nail removal) on his bilateral large toes and was seen for follow-up treatment in the months following the operative procedure. In his March 2011 testimony to the Board, the Veteran described removal of both large toenails, scaling between his toes bilaterally, bad odor, itching, swelling, and scratchiness. He reported that the condition was painful and caused him to wear special shoes. He further reported that the surgery did not help and that he continued to treat the condition with various medications. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran's tinea pedis rendered him unable to secure or maintain a substantially gainful occupation as of May 21, 2010, the date of the operative procedure to remove his large toenails. His prior work history involved primarily manual and manufacturing work that required long periods of standing; he does not have work experience in light physical or sedentary employment. The evidence of record does not persuasively show that the Veteran's service-connected disabilities precluded a substantially gainfully occupation prior to May 21, 2010. In reaching this determination, consideration was not given to his advancing age or nonservice-connected conditions. In summary, while the 2007 and 2008 VA examinations found a stable condition with minimal functional impact, the Board resolves all doubt in favor of the Veteran as of the date of the surgical procedure and finds that he would be precluded from participation in any substantially gainful employment consistent with his education, training, and experience as of that date. According, entitlement to a TDIU is granted as of May 21, 2010. ORDER Entitlement to an initial rating in excess of 10 percent for service-connected tinea pedis with onychomycosis is denied. Entitlement to a TDIU is granted as of May 21, 2010, subject to the laws and regulations governing payment of monetary benefits. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs