Citation Nr: A21020420 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 191024-41600 DATE: December 22, 2021 ORDER An initial rating in excess of 30 percent for service-connected onychomycosis is denied. FINDING OF FACT During the entire appellate period, the Veteran's service-connected onychomycosis, has not been manifested by disfigurement of the head, face, or neck, scars as the predominant disability, more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or require constant or near-constant systemic therapy during the past 12-month period. CONCLUSION OF LAW During the entire appellate period, the criteria for an initial rating in excess of 30 percent for service-connected onychomycosis have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.321, 3.400, 4.1, 4.3, 4.7, 4.10, 4.27, 4.118, Diagnostic Code (DCs) 7806, 7813, General Rating for the Skin for DCs 7806, 7809, 7813-7816, 7820-7822, and 7824, 20.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from July 2009 to January 2014. The Veteran submitted a December 2018 Notice of Disagreement (NOD) to an October 2018 legacy system rating decision, asserting entitlement to an initial rating in excess of 10 percent for service-connected onychomycosis. In August 2019, the Department of Veterans Affairs (VA) Regional Office (RO) issued a Statement of the Case (SOC) and August 2019 legacy system rating decision implementing its grant of an initial 30 percent rating for service-connected onychomycosis. The Veteran opted into the Appeals Modernization Act (AMA) system by submitting an October 2019 VA Form 10182, Decision Review Request: Board Appeal and electing the Evidence Submission review lane. Therefore, the VA Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the August 2019 SOC, as well as any evidence submitted by the Veteran or her attorney with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. Entitlement to an initial rating in excess of 30 percent for service-connected onychomycosis. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Id. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). As the claim herein pertains to the initial rating assigned, the severity of the disability is to be considered during the period from the initial assignment, May 1, 2018, to the present. Fenderson, 12 Vet. App. 119. The claimant bears the burden of presenting and supporting their claim for benefits. 38 U.S.C. § 5107 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor her attorney has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In an October 2018, the RO granted service connection for onychomycosis and assigned the same an initial 10 percent rating, effective May 1, 2018, under DC 7813-7806, pertaining to dermatophytosis and dermatitis or eczema, respectively. 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; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. By an August 2019 rating decision, a Decision Review Officer (DRO) of the RO granted an initial 30 percent rating, effective May 1, 2018. Prior to August 13, 2018, under DC 7813, contemplating dermatophytosis, the rater was directed to rate the disability as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC 7806), depending on the predominant disability. 38 C.F.R. § 4.118, DC 7813. Prior to August 13, 2018, under DC 7806, contemplating dermatitis or eczema, in pertinent part, 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 maximum 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. DC 7806 directs the rater to otherwise rate the disability as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 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, 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, a new General Rating Formula for the Skin applies to DCs 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824. See 38 C.F.R. § 4.118. Under this formula, in pertinent part, 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, psoralen and long-wave ultraviolet radiation (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 maximum 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. The General Rating Formula directs the rater to otherwise rate the disability as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 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 31, 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). If 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. 38 U.S.C. § 5110 (g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under both the old and new rating criteria, and the criteria that is more favorable to the Veteran will be applied. VA treatment records indicate that the Veteran was prescribed Lamisil from December 8, 2017, to January 19, 2018. VA treatment records indicate that the Veteran was prescribed Lamisil from May 4, 2018, to June 23, 2018. VA treatment records dated in May 2018 indicate that the Veteran presented for follow-up treatment for dark and thick nails; physical examination revealed onychomycosis, with bilateral fifth toenails that were thickened, hyperpigmented, and dystrophic, with subungual debris, and a left hallux nail that showed proximal clearing. In a September 2018 Disability Benefits Questionnaire (DBQ), the Veteran was diagnosed with onychomycosis, with a persistent course since onset in fourth and fifth toes, bilaterally, and in the left great toe. The Veteran reported no medication use or treatment in the past 12 months. The examiner reported that 5 percent to less than 20 percent of the total body area was affected and none of the exposed body area was affected. The examiner reported that the Veteran had thickened and discolored toenails, at the left great toenail and at the fourth and fifth toenails, bilaterally. The examiner reported that such was not manifested by scarring and did not impact the Veteran's ability to work. In the October 2018 rating decision, the RO, citing the results of the September 2018 DBQ, granted the Veteran an initial 10 percent rating for her service-connected onychomycosis pursuant to DC 7806, contemplating dermatitis and providing a 10 percent rating for, in pertinent part, 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. 38 C.F.R. § 4.118, DC 7806. However, by the August 2019 DRO rating decision, citing the cycles of medication use recorded in the VA treatment records, the initial rating was increased to 30 percent pursuant to DC 7806, contemplating dermatitis and providing a 30 percent rating for, in pertinent part, systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more. Id. During the entire appellate period, the preponderance of the evidence is against the assignment of an initial rating in excess of 30 percent for service-connected onychomycosis. The Veteran did not offer any statements in support of her claim describing any other symptoms or impact of the same than the thickened, hyperpigmented, and dystrophic toenails described above. The Veteran did not assert that her disability affected a larger percentage of her body areas or that such required continued medication. The Veteran did not assert that her disability had worsened since the last VA examination or that her disability was more severe than described by the examiner. The Veteran's attorney has not offered evidence or argument in support of the Veteran's claim. No party has asserted that there exists a pre-decisional error of VA's duty to assist by the RO that requires correction. There is no evidence or assertion that the Veteran's disability includes disfigurement of the head, face, or neck, or that her disability is manifested by scars as the predominant disability; the DCs pertaining to such may thus not be considered as bases for an increased rating in the present appeal. 38 C.F.R. § 4.118, DC 7800, 7801, 7802, 7803, 7804, 7805, 7813; 38 C.F.R. § 4.118, General Rating for the Skin for DCs 7809, 7813-7816, 7820-7822, and 7824. There is no evidence or assertion that the Veteran's disability affects more than 40 percent of the entire body or more than 40 percent of exposed areas or requires constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period, such that DC 7806, contemplating dermatitis and providing a maximum 60 percent rating for the same, may serve as a basis for an increased rating. 38 C.F.R. § 4.118, DC 7806. There is no evidence or assertion that the Veteran's disability is manifested by characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected, or requires constant or near-constant systemic therapy over the past 12-month period, such that the General Rating Formula for the Skin for DC 7806, providing a maximum 60 percent rating for the same, may serve as a basis for an increased rating. 38 C.F.R. § 4.118, General Rating for the Skin, DC 7806. The Board has considered that while the VA examiner, in the September 2018 DBQ, reported that the Veteran's service-connected onychomycosis did not impact her ability to work, the Veteran sought, during the current appeal, assistance from VA Vocational Rehabilitation, citing her service-connected onychomycosis. Rice v. Shinseki, 22 Vet. App. 447 (2009) (a claim of entitlement to a total disability rating based on unemployability due to a service-connected disability (TDIU) is part of an increased rating claim when such is raised by the record). Records dated in August 2018 indicate that the Veteran was a full-time student in college and working part-time as a security guard. Review of the claims file is silent for any evidence or assertion that the Veteran's service-connected onychomycosis, manifested by thickened, hyperpigmented, and dystrophic toenails, render her unemployable as she has not asserted such or described any functional impairment related to her toenails and physical or sedentary labor; and the Board thus finds that the Veteran's claim for assistance by VA in training or finding employment does not serve as evidence of unemployability. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim of entitlement to an initial rating in excess of 30 percent for service-connected onychomycosis at any time during the appeal period. 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. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.