Citation Nr: 21013736 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-32 309 DATE: March 10, 2021 ORDER Entitlement to an initial compensable rating, for onychauxis of the right hallux, prior to August 2, 2019, is denied. Entitlement to a rating in excess of 10 percent rating, for onychauxis of the right hallux, from August 2, 2019, is denied. Entitlement to an initial compensable rating for onychomycosis of the right hallux, is denied. FINDINGS OF FACT 1. Prior to August 2, 2019, the Veteran’s onychauxis of the right hallux manifest in mild, but not moderate impairment. 2. From August 2, 2019, the Veteran’s onychauxis of the right hallux manifest in moderate, but not moderately severe impairment. 3. At worst, the Veteran’s onychomycosis of the right hallux is manifested by 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. CONCLUSIONS OF LAW 1. Prior to August 2, 2019, the criteria for a compensable rating for onychauxis of the right hallux have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. 2. From August 2, 2019, the criteria for a rating in excess of 10 percent for onychauxis of the right hallux have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284. 3. The criteria for a compensable disability rating for onychomycosis of the right hallux have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from September 1976 to September 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2013 and April 2020 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran’s appeal was remanded by the Board in August 2018 and July 2020 for further development. The appeal has been returned to the Board for appellate review. The Board also notes that the Veteran submitted an appeals satisfaction notice in October 2020. However, this submission was in error. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating disabilities, the regulations prohibit the practice known as pyramiding. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to an initial, compensable rating, for onychauxis of the right hallux, prior to August 2, 2019, is denied. 2. Entitlement to a rating in excess of 10 percent rating, for onychauxis of the right hallux, from August 2, 2019, is denied. 3. Entitlement to an initial, compensable rating, for onychomycosis of the right hallux, is denied. By way of background, the Veteran’s claim for service connection for onychauxis and onychomycosis of the right hallux (great toe) – originating from a traumatic foot injury in April 1977 – was granted in an April 2013 rating decision. The Veteran timely disagreed with the April 2013 rating decision and perfected his appeal to the Board. The Board additionally notes that during the course of the prosecution of his appeal, the Veteran alleged that his condition had worsened in severity. See September 2015 Appeal to the Board, VA Form 9. The Veteran’s appeal was remanded by the Board in August 2018 to associate outstanding VA records with the Veteran’s claims file and to schedule the Veteran for a VA examination. The Veteran’s appeal was again remanded by the Board in July 2020 to issue a supplemental statement of the case (SSOC) addressing the issues on appeal. The Veteran’s onychauxis (or abnormal thickening of the nail) of his right hallux is rated under Diagnostic Code (DC) 5284, which pertains to other foot injuries not specifically enumerated in the rating schedule. 38 C.F.R. § 4.71a Schedule of Ratings – Musculoskeletal System; see also “Onychauxis.” Merriam-Webster.com Medical Dictionary, Merriam-Webster, https://www.merriam-webster.com/medical/onychauxis (last accessed Feb. 9, 2021). Moderate conditions are rated as 10 percent disabling; moderately severe conditions are rated as 20 percent disabling; severe conditions are rated as 30 percent disabling. A note adds that with actual loss of use of the foot, a 40 percent rating is warranted. The words “moderate,” “moderately severe” and “severe” are not defined in Diagnostic Code 5284. Nevertheless, the Board must evaluate all the evidence to the end that its decision is “equitable and just.” 38 C.F.R. § 4.6. The Veteran’s onychomycosis (or fungal disease of the nails) of his right hallux is rated under DC 7806, which pertains to dermatitis or eczema. 38 C.F.R. § Schedule of Ratings – Skin; see also “Onychomycosis.” Merriam-Webster.com Medical Dictionary, Merriam-Webster, https://www.merriam-webster.com/medical/onychomycosis (last accessed Feb. 9, 2021). 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. 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 Code 7806. 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. The Board observes that this matter implicates the prohibition on pyramiding, as both DC 5284 and DC 7806 are analogous rating codes that could overlap in this case. These DC’s have been assigned to compensate the Veteran for the effects of a persistent fungal infection of the nailbed of his right hallux and to compensate him for thickening of his nail associated with the original April 1977 traumatic injury. 38 C.F.R. §§ 4.14, 4.20. As such, the Board’s analysis will address both diagnostic codes concurrently. In connection with his claim, the Veteran was evaluated for skin diseases in July 2015. The examiner indicated that the total body area affected by the Veteran’s condition was “none” and that the exposed area affected by the Veteran’s condition was “none.” The examiner reported that the Veteran had used a topical medication, clotrimazole cream, for six weeks or more, but had not used the topical medication on a constant or near/constant basis. The examiner noted that clotrimazole cream is not indicated for onychomycosis, but rather for tinea pedis, which is a condition, for which the Veteran is not service-connected. The examiner indicated that the Veteran’s skin condition results in a functional impact because the Veteran has to avoid footwear that puts pressure on the right great toenail area. This examination is consistent with a noncompensable rating under DC 7806 under both the former regulations and the post-August 13, 2018, amended regulations. The Veteran was also evaluated for foot conditions in July 2015. The examiner reported that the Veteran experienced pain in his right great toe but did not experience any tenderness. The examiner also noted that the Veteran had very mild, asymptomatic bilateral hallux valgus on exam, which is independent of the remote great toe injury, as evidenced by being bilateral and mild. The examiner reasoned that this condition was therefore not caused by or aggravated by his service-connected right hallux condition. The examiner noted no Morton’s neuroma, no metatarsalgia, no hammer toes, no hallux rigidus, no pes cavus, no malunion or non-union, but did note pes planus. The examiner commented: “there is no evidence of active toenail infection of the right foot toenails, and more specifically the right great toenail at this time. There is also no exam finding [sic.] to support a diagnosis of tinea pedis. There is a contour deformity with mild thickening of the right great toenail that is consistent with the diagnosis of onychauxis of the right great toe, that is due to the trauma noted in service, not due to a toenail infection.” The examiner noted that the Veteran had decreased sensation in his feet (as measured by monofilament testing), which was attributable to diabetes mellitus. The examiner also identified arthritic changes located at the ankle, which were unrelated to the Veteran’s hallux condition. The examiner indicated that the severity of the Veteran’s condition was “mild.” The Board finds that this examination is consistent with a noncompensable rating under DC 5284. The evidence does not show that the Veteran’s condition was anything more severe than mild at this point in time. The Veteran was next examined for foot conditions in August 2019. The examiner again noted pes planus, while finding that the Veteran had a diagnosis of hammertoes on his right and left feet (third toes) – a finding which the July 2015 examiner did not make. The examiner noted no Morton’s neuroma, metatarsalgia, hallux valgus, hallux rigidus, acquired pes cavus (claw foot), malunion/nonunion of the tarsal or metatarsal bones, plantar fasciitis or other foot injuries. The examiner indicated that the Veteran experienced pain on use of his right foot (particularly while standing), pain on manipulation of his right foot (which is accentuated on manipulation), and swelling of his right foot. The examiner documented the Veteran’s reports that his condition had progressed and noted that the Veteran used Tylenol, pain relieving cream, an ice pack and a sports wrap to treat his condition. The examiner reported that the Veteran had tried orthotics but did not experience relief while using them. Also concerning orthotics, the examiner indicated that the Veteran’s foot condition required arch supports, custom orthotic inserts or shoe modifications. The examiner indicated that the Veteran’s foot condition chronically compromised his weight bearing. The examiner reported that the Veteran experienced functional loss, insofar as his right foot disability resulted in less movement than normal, pain on weight-bearing, disturbance of locomotion, and interference with standing. The examiner further explained, “[p]ain on weight bearing prevents carrying heavy items, disturbance of locomotion prevents walking from one place to another without severe pain, and interference with standing contributes to a functional loss if the [V]eteran has to stand for his job.” The examiner found that the Veteran would be unable to stand, lift, or carry items during a flare-up or following repeated use over time. The examiner noted that the Veteran used a cane to relieve pressure on his right foot when walking. The examiner identified a functional impact of the Veteran’s condition, noting that he would be “[u]nable to stand, walk, [or] climb stairs for extended periods [of time] due to the foot condition.” The examiner found that the severity of the Veteran’s condition had progressed to moderate. The Board finds that the date of the examination, August 2, 2019, represents the date upon which it was factually ascertainable that the Veteran’s condition had increased in severity. At this date, the Veteran’s condition was consistent with the criteria for a 10 percent rating under DC 5284. However, the evidence does not show that the Veteran’s condition was anything more severe than moderate at this point in time. The Veteran’s medical treatment records do not shed further light on the severity of his condition. A complete foot examination was performed in December 2019, for example, with the only significant finding being abnormal/decreased sensation identified via a monofilament test. Moreover, the Veteran’s foot condition was noted to involve only a “minor foot infection,” along with a diagnosis of diabetes. In tandem with his August 2019 foot examination, the Veteran was also examined for skin conditions. In contrast to the August 2019 foot examination which identified a worsening in the Veteran’s condition, the August 2019 skin examination identified “no change in the service connected diagnosis” and reported that the course of condition since onset had “stayed the same.” The examiner reported that the Veteran used antifungal cream as a topical treatment on a constant or near constant basis. The examiner reported that the onychomycosis of the Veteran’s right great toe covered less than 5 percent of his total body area and less than 5 percent of the exposed area. The examiner stated that the appearance of the Veteran’s condition was “[t]hick dark nail of 1st right toe.” This examination is again consistent with a noncompensable rating under DC 7806, under both the former regulations and the post-August 13, 2018, amended regulations. Concerning DC 5284, the Board finds that the preponderance of the evidence is against the assignment of a compensable rating prior to August 2, 2019 because the Veteran’s condition manifest in no worse than mild impairment. The Board also finds that the preponderance of the evidence is against a rating in excess of 10 percent from August 2, 2019, because the evidence does not show that the Veteran’s condition manifest in anything worse than moderate impairment. Concerning DC 7806, 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 does not more nearly approximate 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; nor does the Veteran’s condition require 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. 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 does not more nearly approximate 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; nor does the Veteran’s condition require intermittent systemic therapy for a total duration of less than 6 weeks over the past 12- month period. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability ratings reflect. Moreover, the Veteran is competent to report observable symptoms, to include worsening symptomatology, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical treatment records do not show, that the Veteran’s disabilities more nearly approximate the criteria in the next higher ratings. The Board has considered whether any other Diagnostic Codes related to disabilities of the feet and skin provide for higher disability evaluations. However, the evidence does not reflect that he would warrant higher ratings under different diagnostic codes. See 38 C.F.R. § 4.118. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an initial compensable rating for onychomycosis under diagnosis code 7806, is against a compensable rating for onychauxis under diagnosis code 5284, prior to August 2, 2019, and is against a rating in excess of 10 percent for onychauxis under diagnosis code 5284, from August 2, 2019. 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. (continued on next page) T.D. JONES Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, 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.