Citation Nr: A21016352 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 210830-182159 DATE: October 5, 2021 ORDER A rating in excess of zero percent for onychomycosis of the toenails is denied. An effective date of May 18, 2010 for total disability based upon individual unemployability (TDIU) is granted. An effective date of May 18, 2010 for basic eligibility to Dependents Education Assistance (DEA) is granted. FINDINGS OF FACT 1. During the period on appeal, the Veteran's onychomycosis has been characterized as affecting no more than five percent of the Veteran's total body area with no exposed body areas affected. The examiner noted that the Veteran had not been treated with oral or topical medications in the past 12 months. 2. With resolution of the doubt in his favor, the Veteran has been shown to have been unable to secure and follow substantially gainful employment since at least May 18, 2010 due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria to establish a compensable rating for onychomycosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7813. 2. The criteria for an effective date of May 18, 2010 for a TDIU are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.104, 3.105(a), 3.155, 3.156, 3.157, 3.159, 3.114, 3.186, 3.400. 3. The criteria for an effective date of May 18, 2010 for the award of basic eligibility for Dependents' Educational Assistance benefits are met. 38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from August 1964 to August 1967. The Veteran testified at a hearing in May 2017 before a Veterans Law Judge who has since retired. The Board offered the Veteran the opportunity for a new hearing and there was no response to that letter. The Board will decide the appeal based on the evidence available including the transcript of that hearing. The Veteran has submitted a July 2021 VA substantive appeal form indicating an appeal to his denial-of-service connection for gastroesophageal reflux disease (GERD). This appeal is part of the legacy appellate docket and will be addressed in a separate Board decision. Compensable rating: onychomycosis of the toenails Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 Prior to August 13, 2018, under DC 7813, a noncompensable rating is assigned for 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 months. A 10 percent rating is assigned for 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 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7806. For claims filed prior to August 13, 2018, the Court held that a systemic therapy is one that affects the entire body in its treatment of the condition at issue, and that the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. Additionally, effective August 13, 2018, a new General Rating Formula for the Skin applies to Diagnostic Codes 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, a noncompensable rating is assigned for no more than topical therapy 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 exposed areas affected. A 10 percent rating is assigned for at least one of the following: 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, 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 assigned at least one of the following: characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, 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 assigned for at least one of the following: 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. Or rate as disfigurement of the head, face, or neck (DC 7800) or scars (DC's 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824. Effective August 13, 2018, VA regulations explicitly state that systemic therapy is treatment that is administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118 (a). In an August 2010 treatment note, the Veteran was noted to have a diagnosis for a fungus infection of the toenails and ingrown toenails. In a February 2014 treatment note, the clinician noted that the Veteran developed a fungal infection in service and the disorder was not amenable to treatment. In May 2018, the Veteran was afforded a VA examination. He was noted to have a diagnosis for onychomycosis. The examiner stated that less than five percent of the total body area was affected, and no exposed body areas were affected. The examiner noted that the Veteran had not been treated with oral or topical medications in the past 12 months. In March 2021, the Veteran was afforded a VA examination. The examiner noted a diagnosis of dermatophytosis and indicated that less than five percent of the Veteran's total body area was affected with no exposed body areas affected. The examiner noted that the Veteran had not been treated with oral or topical medications in the past 12 months. In April 2021, the Veteran was afforded a VA examination. The examiner noted a diagnosis for onychomycosis of toenails. The examiner stated that the total body area affected was less than five percent and none of his exposed body areas were affected. The examiner noted that the Veteran had not been treated with oral or topical medications in the past 12 months. During the period on appeal, the Veteran's onychomycosis has been characterized as affecting no more than five percent of the total body area with no exposed body areas affected. The examiners noted that the Veteran had not been treated with oral or topical medications in the past 12 months. The preponderance of the evidence is against an evaluation of 10 percent under Diagnostic Code 7813. The evidence does not show at least five percent of the entire body is affected or at least five percent of exposed body areas are affected. There is also no evidence of 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 (for period prior to August 13, 2018). There has also been no intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period (for period after August 13, 2018). Effective date prior to January 2, 2012 for TDIU VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must be at least one disability 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). In June 2021 VA granted TDIU under the ruling in Rice v. Shinseki, 22 Vet. App. 447 (2009)((holding that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating)). The VA Regional Office (RO) assigned an effective date of January 2, 2012. However, because the potential entitlement to a TDIU claim is part of the Veteran's appeal for increased disability compensation for PTSD, the rating period for consideration begins May 18, 2010, date of receipt for the increased rating of PTSD. In April 2011, the claim for an increased rating was denied as were several other issues. In September 2011, the Veteran through his representative filed a notice of disagreement on all the issues of the April 2011 denial. In March 2014, the RO issued a statement of the case. The Veteran filed a formal claim for TDIU in December 2011, which was denied in April 2012. The Veteran filed an NOD in April 2012, and the claim has been in continuous appellate status since that time. It is clear from the Veteran's medical records that he has been unable to sustain substantially gainful employment due to his service-connected disabilities for some time. During the appellate period, the Veteran was struggling with interpersonal relationships with his stepchildren and his wife. He was noted to be literally rendered speechless and sometimes respond with laughter when confronted with a topic he did not want to discuss. The Veteran appears to have had only part-time employment in May 2010. He reported in December 2011 that he was bagging groceries at a market managed by an individual who was also a veteran. During a later VA examination, the Veteran reported that the store manager was assigned during his military service to the same "outfit" as the Veteran thus suggesting some form of special accomodation for the impairments caused by the Veteran's PTSD. In August 2010, the Veteran was afforded a VA examination. The Veteran was noted to have been treated for depression and PTSD. The Veteran also noted that he had been married three times and divorced twice. He also alluded to current marital problems. In addition, the Veteran noted he was socially isolated and had no contact with his three daughters. The examiner observed that the Veteran would talk continuously and jump from one subject to the next as well as provide too much detail to conduct a timely interview. The examiner also noted that the Veteran had extensive symptoms that could include a broad range of diagnostic possibilities. The Veteran also had complaints of unreality, displayed unusual thought processes, apathy, and extreme lassitude and malaise. In April 2012, the Veteran was afforded a VA examination. The Veteran was noted to have financial stress, strained relationships, and occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In an April 2016 private psychological evaluation, the Veteran was noted to have a long history of moderate to marked psychological disability. However, the clinician noted that the Veteran's psychological conditions would preclude employment and that the Veteran had experienced this level of disability for greater than one year. The clinician noted the Veteran's history of substance abuse and history of regular ongoing psychotherapeutic counseling due to his ongoing symptoms including general nervousness, tension, anxiety/fear, sleep disturbance, feeling weak and tired, irritability, impatience, arguments, tendency to withdraw, and having frightening thoughts and images. The clinician noted that the Veteran endorsed 20 of the 32 potential symptoms on a diagnostic and symptom severity checklist. Given this evidence, the Board finds that the Veteran was unable to obtain and maintain substantially gainful employment as of May 18, 2010, the date when the record raised a Rice TDIU claim. An effective date of May 18, 2010 for TDIU is granted. Effective date prior to January 2, 2012 for DEA For purposes of entitlement to DEA benefits under 38 U.S.C. Chapter 35, basic eligibility exists if, among other things, a veteran was discharged from service under conditions other than dishonorable and is rated permanently and totally disabled due to service-connected disabilities. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021. When the RO granted TDIU effective May 18, 2010, the basic eligibility for DEA was established. DEA benefits may not be awarded prior to the effective date of an award of a permanent and total disability rating. (CONTINUED ON NEXT PAGE) Here, the Board is granting an effective date of May 18, 2010, for entitlement to TDIU. Therefore, the Veteran is entitled to an effective date of May 18, 2010, for entitlement to DEA benefits. 38 U.S.C. §§ 3501, 3510. To this extent, the claim is granted. Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Wozniak, Associate Counsel The Board's action is binding only with respect to this matter and is not precedential or establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.