Citation Nr: 21072898 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-37 939 DATE: December 6, 2021 ORDER Entitlement to a compensable disability rating for onychomycosis is denied. Entitlement to a compensable disability rating for bilateral tinea pedis is denied. FINDINGS OF FACT 1. The Veteran's onychomycosis is manifested by the characteristic lesions involving less than 5 percent of the entire body and less than 5 percent of exposed body areas. 2. The Veteran's bilateral tinea pedis is manifested by the involvement of less than 5 percent of the entire body and less than 5 percent of exposed body areas. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability rating for onychomycosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.118, Diagnostic Code 7806. 2. The criteria for entitlement to a compensable disability rating for bilateral tinea pedis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.118, Diagnostic Code 7813-7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from September 1987 to September 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, these claims were remanded by the Board for additional development. Review of the completed development reveals that, at the very least, substantial compliance with the remand directives was obtained. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Increased Ratings 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; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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, 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; 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; 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. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). VA amended the criteria for rating skin disabilities effective from August 13, 2018. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after August 13, 2018. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to August 13, 2018, under Diagnostic Code 7806, 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, Diagnostic Code 7806. For claims filed prior to August 13, 2018, the Court held that a systematic therapy is one that 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. 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). 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. 1. Entitlement to an extraschedular disability rating for onychomycosis 2. Entitlement to an extraschedular disability rating for bilateral tinea pedis The Veteran contends that he is entitled to a higher rating because his conditions are much worse than indicated by the examiner's report, due to the surgical excision of his toenails, as well as the pain, discomfort, and odor that his condition causes. See August 2021 Informal Hearing Presentation. The Veteran's onychomycosis is rated under Diagnostic Code 7806, for dermatitis or eczema. A December 2017 rating decision assigned a temporary evaluation of 100 percent for surgical or other treatment necessitation convalescence from September 26, 2017 to December 1, 2017 and assigned a noncompensable disability rating thereafter. The Veteran's bilateral tinea pedis is rated under Diagnostic Code 7813-7806. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. The additional code is shown after the hyphen. Regulations provide that when a disability not specifically provided for in the rating schedule is encountered, it will be rated under a closely-related disease or injury, in which both the functions affected, and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Here, the hyphenated diagnostic code indicates that the Veteran's bilateral tinea pedis under Diagnostic Code 7813 is rated under Diagnostic Code 7806, dermatitis or eczema. A January 2015 rating decision assigned a noncompensable disability rating, effective August 13, 2009. The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018, regulations because the Veteran's onychomycosis and bilateral tinea pedis do not more nearly approximate involvement of at least 5 percent of the entire body, or at least 5 percent of exposed areas of the body, 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. Additionally, the Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the August 13, 2018, regulations because the Veteran's onychomycosis and bilateral tinea pedis does not more nearly approximate characteristic lesions involving at least 5 percent of the entire body affected; or at least 5 percent of exposed areas affected; or intermittent systemic therapy required for a total duration of less than 6 weeks over the past 12- month period. A February 2020 VA examination noted that the Veteran currently has onychomycosis of the 5th toenails, the others have been removed; he also has tinea pedis of the soles of his feet. He has ongoing pain in his feet that have been attributed to diabetic neuropathy unrelated to skin condition. The Board finds that the preponderance of the evidence demonstrates that the percentage of body surface affected has been less than 5 percent. See February 2020 VA examination. The February 2020 VA examiner explained that "according to rule of 9's, the front and back of a leg and the foot equals 9 percent of the body. The foot sole and one toenail are not half of the leg, therefore, it is less than 5 percent." The severity of skin condition is stable, if not improved by removal of most of toenails except the bilateral 5th toenail. The VA examiner further concluded that these conditions have been constant since service. Lastly, the Veteran reported to the February 2020 VA examiner that his current treatment for these conditions is Terbinafine HCL, 250mg and Lidocaine cream, which is a topical treatment used for less than six months. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include changes in the appearance of the nails, pain, slightly foul odor, dry, thickened, swelling, itching between toes, with cracking and burning, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board does not find the Veteran's reports that his condition covers the entirety of both feet to be credible. See June 2015 Statement of Claim. Rather, the Board finds the opinion of 2020 VA examiner regarding the percentage of the Veteran's body areas affected (total and exposed) to be of greater probative weight than reports of the Veteran regarding the extent of his body areas affected as the examiner reports specific affected areas and discusses how body area percentage is determined. Additionally, the Board notes that medical treatment records do not show that the Veteran's disabilities involve at least 5 percent of the entire body or at least 5 percent of exposed body areas. The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. The Veteran has argued that extraschedular consideration should be granted for both issues because "his conditions are much worse than indicated by the examiner's report, due to the surgical excision of his toenails, as well as the pain, discomfort, and odor that his condition causes." See August 2021 IHP. The Veteran also submitted a statement from his psychologist who concluded that the Veteran's bilateral foot conditions have a severe emotional impact. See January 2019 Private Medical Statement. In order to receive compensation for psychological or emotional symptoms, a claimant must have a diagnosis of a mental condition that conforms to the DSM-5. Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 404 (2020). Here, the Veteran is already in receipt of service connection for posttraumatic stress disorder (PTSD) and has been assigned a 70 percent disability rating. Moreover, as noted above, extraschedular ratings are only appropriate after VA has exhausted all other tools for a disability rating, whether direct, secondary, or analogous ratings. Id. In this case, the Veteran's claimed mental and emotional symptoms are already adequately evaluated under VA's General Rating Formula for Mental Disorders, which contemplates a variety of mental health symptoms and their effect on social and occupational functioning and familial relations. See 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders; see also Long, 33 Vet. App. at 173-75 (holding that the Veteran's claimed symptoms of reduced self-esteem, social impairment, anxiety, and depression were not exceptional so as to warrant an extraschedular rating because they could be adequately evaluated under VA's General Rating Formula for Mental Disorders, which expressly contemplates, among other things, social impairment). As the Veteran's symptoms due to his onychomycosis and bilateral tinea pedis are either contemplated by the rating criteria under Diagnostic Code 7806 or under his current evaluation assigned under the General Rating Formula for Mental Disorders, the Board finds that the evidence does not establish that the Veteran's symptomatology for these conditions is so unusual as to not be contemplated by the rating schedule. The rating criteria are thus adequate to evaluate the disability, and referral for consideration of an extraschedular rating is not warranted. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); see also Martinez-Bodon, 32 Vet. App. at 404. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claims for compensable ratings for onychomycosis and bilateral tinea pedis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Patrick M. Johnson Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. N. Wilson, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.