Citation Nr: 21010247 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-14 987 DATE: February 24, 2021 ORDER An initial compensable rating for trauma-induced onychauxis with onychomycosis of the left great toe is denied. REMANDED Entitlement to initial increased ratings for coronary artery disease (CAD) rated as 10 percent disabling prior to October 15, 2015 is remanded. FINDING OF FACT At no time during the appeal period did the Veteran’s trauma-induced onychauxis with onychomycosis of the left great toe more affect at least 5 percent of the entire body; affect at least 5 percent of exposed areas affected; or require intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. . CONCLUSION OF LAW The criteria for an initial compensable rating for trauma-induced onychauxis with onychomycosis of the left great toe have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7820-7806. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to March 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in October 2013, May 2014, and November 2015 of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the matters in July 2020. In January 2019, the Board denied entitlement to an initial compensable rating for trauma-induced onychauxis with onychomycosis of the left great toe and denied entitlement to an initial rating in excess of 10 percent for CAD prior to October 15, 2015 and in excess of 30 percent thereafter. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In March 2020, the Court granted a Joint Motion for Partial Remand (JMPR) by counsel for the Veteran and VA, hereafter referred to as the parties, and remanded the matter to the Board for further development and readjudication consistent with the JMPR. Notably, in the March 2020 JMPR, the parties requested that the Court dismiss the appeal of the denial of a rating in excess of 30 percent for CAD beginning October 15, 2015. Therefore, the only issue remaining before the Board regarding the Veteran’s CAD claim is entitlement to an initial rating in excess of 10 percent prior to October 15, 2015. Increased Rating 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. 38 C.F.R. § 4.1. 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). Trauma-induced onychauxis with onychomycosis of the left great toe. The Veteran is appealing the original assignment of a disability evaluation following an award of service connection for trauma-induced onychauxis with onychomycosis of the left great toe. As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s left great toe disability rated under Diagnostic Codes 7820-7806. Hyphenated diagnostic codes are used when a rating under one 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, shown after the hyphen, represents the basis for the rating, while the primary code indicates the underlying source of the disability. In this case, Diagnostic Code 7820 is used for rating infections of the skin not listed elsewhere (including bacterial, fungal, viral, or other analogous disabilities), while Diagnostic Code 7806 indicates the schedular rating criteria used to rate dermatitis or eczema. 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 (AOJ) 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 (Diagnostic Code 7800) or scars (Diagnostic Codes 7801, 7802, 7803, 7804, or 7805), depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7815, 7816, 7821, 7822. 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. The Veteran underwent VA foot examination in August 2013 at which time he stated that shrapnel went through his left boot and through his left great toenail, taking the “top off” and that the hallux nail plate never grew back correctly. The Veteran denied treatment for the left hallux nail plate for the prior 12-month period other than self-trimming the toenail. The Veteran underwent VA skin examination in October 2015 at which time he denied treatment for the prior 12-month period. Physical examination demonstrated infections of the skin less than 5 percent of total body area and zero percent exposed area. The Veteran underwent VA foot and skin examinations in October 2020 at which time he denied treatment for the prior 12-month period. Physical examination demonstrated onychomycosis and trauma-induced onychauxis less than 5 percent of total body area and zero percent exposed area. The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation under the pre-August 13, 2018 or August 13, 2018, regulations because at no time during the appeal period did the Veteran’s trauma-induced onychauxis with onychomycosis of the left great toe affect at least 5 percent of the entire body; affect at least 5 percent of exposed areas affected; or require intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs. The Board has considered whether any other Diagnostic Codes related to the Veteran’s left great toe disability would provide for a higher disability evaluation. The March 2020 JMPR determined that the Board erred insofar as it failed to discuss: (1) whether the Veteran’s left great toe disability could be rated under either Diagnostic Code 7804 (applicable to unstable or painful scars) or Diagnostic Code 5284 (applicable to other unlisted foot injuries); and (2) whether the Veteran had two separate left great toe disabilities (based on his diagnoses of both onychauxis and onychomycosis of the left great toe) that must be rated separately. Further, in its July 2020 remand, the Board directed that the examiner address whether an October 2017 VA primary care note reflecting that a diabetic foot examination revealed “abnormal” skin integrity results and “bilateral great toe dystrophy” represents an additional diagnosis pertaining to the Veteran’s left great toe. In this case, the evidence does not reflect that a different diagnostic code is applicable or that symptoms of onychauxis and onychomycosis of the left great toe should be rated separately. At the August 2013 examiner, the Veteran noted that the left hallux toenail was painful but denied any pain to his feet other than to his left great toenail. The October 2015 VA examiner noted that the left hallux nail plate was dystrophic with deviation in its growth pattern noted as “adducted and slight valgus rotation” with thickening, subungual debris, and incurvated borders and that there was mild pain on dorsal palpation of left hallux nail plate. The October 2020 VA examiner noted that the Veteran described toe pain when it got cold or when the nail got really thick and he bumped it; he denied numbness, diabetic neuropathy, or diabetic ulcers. The examiner noted that the Veteran had pain with palpation, weight-bearing, and with prolonged walking depending on the fit of his particular footwear due to abnormal left great toenail growth. The examiner noted that the Veteran’s pain in his toe was due to both the trauma-induced onychauxis with onychomycosis, that the thickening of the nails created skin irritation at the lateral nail fold producing pain, and that the abnormal growth of the left great nail plate created pain with weight-bearing and prolonged walking depending on how frequently the Veteran grinded the nail to a shorter appearance. Specifically, the examiner noted that the Veteran’s left great toe pain was from the dystrophic nail which grew in a lateral direction. The examiner noted that both conditions, trauma-induced onychauxis with onychomycosis, could produce abnormal growth pattern and thickening of the nail plate and that it was impossible beyond near speculation to assign symptoms to one diagnosis versus another. Both the August 2013 and October 2020 VA examiners indicated that the Veteran did not have a current foot diagnosis associated with the claimed left great toe condition such as Morton’s neuroma, metatarsalgia, hammer toes, hallux valgus, hallux rigidus, pes cavus, or malunion or nonunion of tarsal/metatarsal bones. The October 2020 VA examiner also indicated that the Veteran also did not have arthritis, other foot injury, or inflammatory condition. Further, with respect to the October 2017 VA primary care note reflecting that a diabetic foot examination revealed abnormal skin integrity results and bilateral great toe dystrophy, the October 2020 VA examiner noted that no diagnosis was rendered as no additional toe or skin findings related to diabetes were observed on examination. The Board notes that diabetic foot examinations conducted in November 2016, November 2018, and November 2019 were normal. In short, both toenail conditions cause a dystrophic nail which can be painful due to grown in a lateral direction. Accordingly, as both diagnoses cause the same manifestation, to assign separate ratings would result in compensating twice for the same disability under different diagnoses, in violation of the rule against pyramiding. See 38 C.F.R. § 4.14. The JMPR instructs the Board to discuss whether the Veteran’s left great toe disability can be rated by analogy under DC 5284, which pertains to injuries of the feet. Under DC 5284, a 10 percent rating is assigned for a moderate foot injury, a 20 percent recent is assigned for a moderately severe foot injury, and a 30 percent rating is assigned for a severe foot injury. 38 C.F.R. § 4.71a. The Board finds that DC 5284 is not applicable. The Veteran’s left great toenail condition concerns his toe, not his foot generally. Moreover, even if DC 5284 did apply, the Board finds that to the extent there is some pain associated with the left great toenail, it does not amount to a moderate foot injury; therefore, the criteria for a 10-percent rating under DC 5284 are not met or more nearly approximated. The Board also observes that the evidence generally does not show functional impairment associated with the left great toenail conditions. In the November 2020 VA examination report, the examiner found that the Veteran’s left great toenail conditions did not have a functional impact on the Veteran’s ability to work, which is the basis for assigning evaluations under the rating schedule. See 38 C.F.R. §§ 4.1, 4.10. Finally, the Board notes that there are other diagnostic codes pertaining to the foot that would be more closely analogous than DC 5284. For example, under DC 5282, a 0 percent rating is assigned for hammertoe of a single toe; under DC 5283, a 10-percent rating is assigned for moderate malunion or nonunion of tarsal or metatarsal bones; under DC 5280, a 10-percent rating is assigned, in part, for unilateral hallux valgus when severe, if equivalent to amputation of the great toe; and under DC 5278, a 0-percent rating is assigned for slight clawfoot where the great toe is dorsiflexed, there is some limitation of dorsiflexion at ankle, and there is definite tenderness of metatarsal heads. 38 C.F.R. § 4.71a. Viewed in light of these diagnostic codes, which put the issue into perspective, it is clear that the rating schedule contemplates that a noncompensable rating is to be assigned for occasional subjective pain of the great toe that does not result in occupational impairment. In conclusion, the Board finds that the preponderance of the evidence is against an initial compensable rating for trauma-induced onychauxis with onychomycosis. 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. REASONS FOR REMAND Entitlement to initial increased ratings for coronary artery disease (CAD) rated as 10 percent disabling prior to October 15, 2015 is remanded. In a July 2020 remand, the Board directed that the Veteran be sent a VA Form 21-4142 Authorization for Release of Information, for completion, to obtain records relating to his private treatment for CAD, to include by Dr. Mayur Bhakta of Cardiovascular Consultants, LTD. Later that month, the Veteran was requested to complete and return the enclosed VA Forms 21-4142a and 21-4142 so that VA could obtain the authorization to request treatment records from his private medical sources. The Veteran completed VA Forms 21-4142 for medical treatment received in 2020, but did not sign the forms. Thus, VA was unable to request the records. As the July 2020 request did not specify that VA requests records specifically pertaining to the Veteran’s CAD, including from Dr. Mayur Bhakta of Cardiovascular Consultants, LTD, the Board finds he should be provided another opportunity to submit such records. The matter is REMANDED for the following action: Request the Veteran to complete a VA Form 21-4142 for any treatment records relating to his CAD date through October 2015, including from Dr. Mayur Bhakta of Cardiovascular Consultants, LTD. He should also be invited to submit the records himself. Appropriate efforts should be made to obtain these records if he furnishes the necessary release form(s). J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Olson, 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.