Citation Nr: 18149581 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 17-62 768 DATE: November 9, 2018 ORDER Entitlement to a compensable rating for onychomycosis is denied. REMANDED Entitlement to a rating in excess of 10 percent for degenerative arthritis of the lumbar spine is remanded.   FINDING OF FACT The Veteran’s onychomycosis of the bilateral feet affects less than five percent of his total body area and his exposed areas, and has not been treated with systemic therapy such as corticosteroids or other immunosuppressive drugs. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for onychomycosis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Codes (DCs) 7806, 7813 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1996 to November 2016 This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a February 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The RO granted entitlement to service connection for a right knee strain, entitlement to service connection for a left knee strain, and entitlement to service connection for a left shoulder strain. The Veteran filed a timely notice of disagreement with the assigned evaluations, but, on his Substantive Appeal, VA Form 9, indicated that he did not wish to appeal these three issues. As such, these issues are no longer before the Board. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or an illness proportionate to the severity of the several grades of disability. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Onychomycosis The Veteran’s onychomycosis is rated as 10 percent disabling under DC 7813-7806. The appeal period now before the Board begins in December 2016, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned a noncompensable (zero percent) rating throughout the entire appeal period. Significantly, regulations pertaining to skin disabilities were recently amended and new criteria for rating skin disabilities became effective on August 13, 2018. When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3- 2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The recently revised skin regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, August 13, 2018. Hence, for the period beginning August 13, 2018, the version more favorable to the veteran will apply. Prior to August 13, 2018 DC 7806 assigns a 10 percent rating when the skin condition covers at least 5 percent, but less than 20 percent of the entire body or exposed areas; or requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12-month period. A 30 percent rating is assigned when 20 to 40 percent of the entire body or 20 to 40 percent of the 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. Higher evaluations are available for more severe manifestations. 38 C.F.R. § 4.118, DC 7806. Since August 13, 2018 Under DC 7806, a noncompensable rating is warranted when no more than topical therapy is required over the past 12-month period and at least one of the following: characteristic lesions involving less than 5 percent of the entire body affected, or characteristic lesions involving less than 5 percent of the exposed areas affected. A 10 percent rating is warranted when one of the following exists: characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or at least 5 percent, but less than 20 percent, of exposed areas affected; or, intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. A 30 percent rating is warranted when one of the following exists: characteristic lesions involving 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas are affected; or, systemic therapy including but not limited to corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted when one of the following exists: characteristic lesions involving more than 40 percent of the entire body, or more than 40 percent of exposed areas affected; or, constant or near-constant systemic therapy including but not limited to corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. Discussion The Veteran received a VA examination in July 2016 and indicated that he had not been treated with oral or topical medications in the past 12 months for any skin condition. The Veteran also did not have any debilitating episodes in the past 12 months due to urticaria, primary cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis. The examiner noted that toenails 1 – 3 and 5 on both feet were thick and flaky. This affected less than 5 percent of the exposed area. After a thorough review of the record, the Board finds that a higher disability rating is not warranted for the Veteran’s onychomycosis under either version of DC 7806. Under the old regulations, the evidence does not show that the Veteran’s onychomycosis affected at least 5 percent of the entire body or at least 5 percent of the exposed areas affect, or required intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period. Therefore, the preponderance of the evidence is against the Veteran’s claim of entitlement to a compensable rating for onychomycosis under the regulations in effect prior to August 13, 2018. Under the amended regulations, the evidence does not show that the Veteran’s onychomycosis affected at least 5 percent of the exposed area affected, nor does it show that the Veteran required intermittent systemic therapy. Finally, the evidence does not show that the Veteran required immunosuppressive drugs for a total duration of less than 6 weeks over the past 12-month period. Therefore, the preponderance of the evidence is against the Veteran’s claim of entitlement to a compensable rating for onychomycosis under the old regulations or the amended regulations in effect beginning August 13, 2018. REASONS FOR REMAND Lumbar Spine Regrettably, a remand is necessary for further evidentiary development of the Veteran’s appeal. The Veteran’s last VA examinations for his lumbar spine disability was in July 2016. The Board has reviewed that examination report and notes that it is not adequate, as it does not appear that any passive, weight-bearing or nonweight-bearing range of motion testing was conducted at those times. Consequently, the Board must remand the claims in order for another VA examination to be accomplished. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Correia v. McDonald, 28 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing). Furthermore, in the case of Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court also noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups.” The Court also stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. Id. at 10. The matter is REMANDED for the following action: (Continued on the next page)   Schedule the Veteran for an examination of the current severity of his lumbar spine disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and after repeated use over time, and the degree of functional loss during flare-ups and after repeated use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disability alone and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. (Continued on the next page)   If it is not possible to provide a specific measurement or an opinion regarding flare-ups and after repeated use over time, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel