Citation Nr: 1805210 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 11-11 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a compensable rating for onychomycosis of the bilateral great toes. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1987 to January 2007. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. This case was previously before the Board in February 2016 and August 2017, when it was remanded for additional development. The Board notes that this matter had previously been subject to a stay of adjudication pursuant to VA's appeal of the Court of Appeals for Veterans Claims (Court) decision in Johnson v. McDonald, 27 Vet. App. 497 (2016). However, in Johnson v. Shulkin, 862 F.3d 1351 (2017), the Federal Circuit reversed the Court's decision in Johnson. Accordingly, the stay has been lifted and the claim is ripe for adjudication. FINDING OF FACT Throughout the pendency of the appeal, the Veteran's onychomycosis affected less than five percent of the entire body, less than five percent of the exposed body, and required no more than topical therapy. CONCLUSION OF LAW The criteria for a compensable disability rating for onychomycosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has raised no issues with the duty to notify or duty to assist or with remand compliance. 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 a duty to assist argument). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1 (2017). 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 many accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3(2017); where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); 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 (2017). See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's onychomycosis has been assigned a noncompensable initial disability rating pursuant to 38 C.F.R. § 4.118, Diagnostic Codes 7899-7806 (2017). Diagnostic Code 7806 provides a noncompensable evaluation for dermatitis or eczema involving less than five percent of the entire body, or less than five percent of exposed areas affected, and no more than topical therapy required during the prior 12-month period. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). A 10 percent disability rating is assigned if there is dermatitis or eczema of at least five percent of the entire body, but less than 20 percent of the entire body, or at least five percent, but less than 20 percent of the exposed affected areas, or intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the prior 12-month period. Id. For a 30 percent disability rating, there must be dermatitis or eczema over 20 to 40 percent of the body or 20 to 40 percent of the 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 prior 12-month period. Id. A 60 percent evaluation is provided for dermatitis or eczema that affects more than 40 percent of the entire body or more than 40 percent of exposed areas, or; required constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs during the past 12-month period. Id. A note under the diagnostic criteria indicates that the disability can be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability. Id. In an October 2009 report of contact the Veteran indicated that his onychomycosis of the bilateral toes was worse than currently rated. At a December 2009 General Medical examination, the Veteran reported he had onychomycosis on the toenails of both feet. The examiner noted that the Veteran's onychomycosis did not involve the face, neck, or head. The Veteran reported crusting on his toenails, but denied any treatment within the past 12 months. He also reported that that his onychomycosis limited the type of shoes he that could wear because pressure caused soreness. Examination revealed crusting, inflexibility of less than six square inches and abnormal texture less than six square inches. There was no evidence of ulceration, exfoliation, disfigurement, tissue loss, induration, hypopigmentation, hyperpigmentation, or limitation of motion. The examiner opined that the Veteran's onychomycosis comprised zero percent of exposed areas and less than one percent of the whole body area. The examiner found no evidence of systemic disease. The examiner characterized the Veteran's onychomycosis as an active condition, manifested by subjective crusting and objective lesions. On his February 2010 notice of disagreement the Veteran reported that his service-connected disabilities, including his onychomycosis of the bilateral toes, severely compromised his quality of life. On his April 2011 substantive appeal, the Veteran stated that his onychomycosis was worse than currently rated. He indicated he was seeking a 10 percent rating for his onychomycosis. A September 2012 disability evaluation from Royal Suntomed Medical Group, contained within the Veteran's SSA records, indicated that inspection of the Veteran's skin revealed no rashes or lesions and that coloring and complexion was within normal limits. There was no mention of symptomatology or impairment related to the Veteran's onychomycosis of the bilateral toes. At his June 2015 hearing, the Veteran testified that his onychomycosis resulted in buildup and pressure underneath his bilateral toenails, which he had to dig out with a pedicure tool. He also noted that his onychomycosis caused nail thickening and irritation. He noted his toes were frequently sore and tender, which resulted in him avoiding shoes that confined or pressed on his toes. He reported that he had only sought VA treatment for this condition on one occasion, at which time he had been prescribed Lamisil with some success. However, when asked when he had been prescribed Lamisil the Veteran clarified that he did not remember the dates, but he thought it was during his military service while he was stationed in Germany. With regard to current treatment, he reported that he used over-the-counter topical antifungal medication. He indicated that while he was aware that oral medication, such as Lamisil, would be more effective he did not want to use medications because it could negatively impact his liver functioning. At his March 2016 skin examination, the Veteran reported that he treated his onychomycosis of the bilateral toenails with Lamisil on one occasion and that it had cleared the condition for a time but eventually returned. He reported that his standard treatment was over-the-counter topical medication. The examiner noted that the Veteran received debridement and Lotrimin solution through VA in the past, but was not receiving treatment currently. The examiner indicated that the Veteran's onychomycosis did not result in scarring or disfigurement of the head, face, or neck; or systemic manifestations. The Veteran denied treatment with oral or topical medication in the past 12 months. At his October 2017 VA skin examination the Veteran reported that he had an ongoing fungal infection of the bilateral great toes. He noted that the condition had previously been treated with Lamisil without relief. He reported that during flare ups he had pain and difficulty when clipping or cutting his toenails. The examiner indicated that the Veteran's onychomycosis of the bilateral great toes did not result in scarring or disfigurement of the head, face, or neck, skin neoplasms, or any systemic manifestations. The examiner stated that during the prior 12 months the Veteran's skin condition had not been treated with oral or topical medications, systemic corticosteroids or other immunosuppressive medications, antihistamines, immunosuppressive retinoids, sympathomimetic, other oral medications, photo-chemotherapy, ultraviolet B phototherapy, electron beam therapy, intensive light therapy, or other treatment. The Veteran denied any debilitating or non-debilitating episodes due to urticarial, cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis in the prior 12 months. The examiner opined that the Veteran's onychomycosis of the bilateral great toes affected less than 5 percent of his total body area and no exposed body area. Upon review of the evidence, the Board finds that the criteria for a compensable rating have not been met. The preponderance of the evidence demonstrates that throughout the appeal period, the Veteran's onychomycosis of the bilateral great toes resulted in thick toenails that were painful when clipped and required over-the-counter topical antifungal medication. Nevertheless, it has not affected at least five percent of the entire body, at least five percent of exposed body areas, or required any systemic therapy or immunosuppressive therapy. The Board acknowledges that the evidence indicates that the Veteran's onychomycosis was treated with oral Lamisil on one occasion. However, the weight of medical evidence, including the Veteran's own statements indicates that treatment occurred during the Veteran's military service and not during the pendency of the appeal. Additionally, while a note to Diagnostic Code 7806 (2017) indicates that the disability can be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending upon the predominant disability, the Veteran's onychomycosis affects only his toenails and has not resulted in scarring. Accordingly, the aforementioned diagnostic codes are not applicable. See 38 C.F.R. § 4.118, Diagnostic Code 7806 (2017). Accordingly, the Board finds that entitlement to a compensable rating for onychomycosis is not warranted. In reaching the above 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 in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). As a final matter, the Board notes that during the course of the present appeal a claim of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was raised by the Veteran. While a claim for TDIU may be part and parcel of an increased rating claim on appeal, the Veteran's claim for TDIU has been separately considered and denied by the RO in a December 2015 rating decision. See Roebuck v. Nicholson, 20 Vet. App. 307, 315 (2006) (acknowledging that the Board can bifurcate a claim and address different theories or arguments in separate decisions). The December 2015 rating decision denying TDIU was not appealed. Accordingly, that issue is not before the Board and no action pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) is warranted. ORDER Entitlement to a compensable rating for onychomycosis of the bilateral great toes is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs