Citation Nr: 21022580 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 13-89 779A DATE: April 16, 2021 ORDER Entitlement to a compensable rating for onychomycosis of the bilateral toes is denied. FINDING OF FACT The Veteran’s onychomycosis of the bilateral toes affects less than five percent of his total body area and exposed areas, and has not been treated with systemic therapy such as corticosteroids or other immunosuppressive drugs. CONCLUSION OF LAW The criteria for entitlement to a compensable rating for onychomycosis have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7806, 7820 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from October 1968 to May 1970, to include service in the Republic of Vietnam. This case comes before the Board of Veterans’ (Board) on appeal from an August 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in August 2018 and July 2020 at which time it was remanded for additional development. The Board finds that there has been substantial compliance with the most recent July 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). An initial compensable disability rating for onychomycosis Legal Criteria Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his symptoms. 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 Veteran was service connected for onychomycosis associated with diabetes effective March 2, 2011 under Diagnostic Code 7913 (rating criteria for diabetes). Throughout the appeal period, the Veteran’s onychomycosis has not been assigned a separate diagnostic code because of symptoms deemed noncompensable. Diagnostic Code 7820 provides that infections of the skin not listed elsewhere in the Rating Schedule are to be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800), scars (Diagnostic Codes 7801-7805), or dermatitis (Diagnostic Code 7806), depending upon the predominant disability. See 38 C.F.R. § 4.118. Here, Diagnostic Codes 7800 and 7805 are inapplicable, and dermatitis is the predominant disability. Significantly, regulations pertaining to skin disabilities were recently amended and new criteria for rating skin disabilities became effective on August 13, 2018. When 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. VAOPGCPREC 3- 2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The recently revised skin regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, August 13, 2018. Hence, for the period beginning August 13, 2018, the version more favorable to the veteran will apply. Prior to August 13, 2018 Diagnostic Code 7806 assigns a 10 percent rating when the skin condition covers at least 5 percent, but less than 20 percent of the entire body or exposed areas; or requires intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs for a total duration of less than 6 weeks during the past 12-month period. A 30 percent rating is assigned when 20 to 40 percent of the entire body or 20 to 40 percent of the exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of six weeks or more, but not constantly, during the past 12-month period. Higher evaluations are available for more severe manifestations. 38 C.F.R. § 4.118, Diagnostic Code 7806. From August 13, 2018 onwards Under Diagnostic Code 7806, a noncompensable rating is warranted when no more than topical therapy is 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 the exposed areas affected. A 10 percent rating is warranted when one of the following exists: 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, psoralen with long-wave ultraviolet-A light (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 warranted when one of the following exists: characteristic lesions involving 20 to 40 percent of the entire body, or 20 to 40 percent of exposed areas are affected; or, 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 for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted when one of the following exists: 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. Factual Background & Analysis The appeal period before the Board begins in March 2011, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned a noncompensable (0 percent) rating throughout the entire appeal period. On October 2011 VA skin examination the Veteran was diagnosed with onychomycosis with subjective factors noted to be itching, shedding, and shortening of the right big toenail. Objective factors were hyperpigmentation, rough, cloudy, and crumbly toenail. An August 2012 VA skin examination documents that the Veteran’s onychomycosis does not cover any exposed body surface area and covers less than 5 percent of total body surface area. VAMC podiatry notes from 2012 to 2014 document all toenails discolored and dystrophic described as dry and scaly without interdigital maceration. The physician noted that the Veteran agreed to apply Lotrimin solution to his toenails twice a day. The Veteran underwent a VA skin examination in October 2019. However, the examiner did not document or address the Veteran’s onychomycosis in the examination report. Consequently, the Board remanded this matter in July 2020 for a new VA skin examination. On October 2020 VA skin examination the Veteran was noted to have onychomycosis on all toes on both feet. His toenails were described as yellow, brittle and with noticeable scaling. The Veteran reported that this condition “never goes away.” The Veteran further reported that he does not currently take any medications to treat his onychomycosis symptoms. In addition to onychomycosis, a diagnosis of tinea pedis of the bilateral feet between the toes was indicated and was associated with service-connected tinea cruris. The examiner remarked that onychomycosis was worse in the in the left foot than the right with yellow toenails that are very brittle. Both the diagnosed tinea pedis and onychomycosis were classified as types of dermatophytosis (fungal infections of the skin). They were noted to cover none of the Veteran’s exposed body area and less than 5 percent of his total body area. After a thorough review of the record, the Board finds that a higher disability rating is not warranted for the Veteran’s onychomycosis under either version of Diagnostic Code 7806. Under the old regulations, the evidence does not show that the Veteran’s onychomycosis affected at least 5 percent of the entire body or at least 5 percent of the exposed areas affect, or required 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. In that regard, August 2012 and October 2020 VA skin examinations reveal that the Veteran’s onychomycosis does not cover any exposed body surface area and covers less than 5 percent of total body surface area. Therefore, the preponderance of the evidence is against the Veteran’s claim of entitlement to a compensable rating for onychomycosis under the regulations in effect prior to August 13, 2018. (Continued on the next page)   Under the amended regulations, the evidence does not show that the Veteran’s onychomycosis affected at least 5 percent of the exposed area affected, nor does it show that the Veteran required intermittent systemic therapy. Finally, the evidence does not show that the Veteran required immunosuppressive drugs for a total duration of less than 6 weeks over the past 12-month period. The October 2020 VA skin examination report reflects that the Veteran does not use any type of medication to treat his onychomycosis. Medical treatment records also do not document that the Veteran’s onychomycosis required intermittent systemic therapy or application of immunosuppressive drugs for a total duration of less than 6 weeks over the past 12-month period. Therefore, the preponderance of the evidence is against the Veteran’s claim of entitlement to a compensable rating for onychomycosis under the old regulations or the amended regulations in effect beginning August 13, 2018. The claim must be denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.