Citation Nr: 21027681 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 11-11 580 DATE: May 6, 2021 ORDER Entitlement to a 10 percent rating for onychomycosis of the bilateral great toes is granted, subject to the rules and regulations governing the award of monetary benefits. REMANDED Entitlement to a compensable rating for sinus headaches is remanded. Entitlement to a compensable rating for allergic rhinitis for the period prior to September 28, 2020 is remanded. Entitlement to a rating in excess of 10 percent for allergic rhinitis since September 28, 2020 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT Throughout the pendency of the appeal, the Veteran's onychomycosis was manifested by painful, thick, and discolored bilateral great toenails; it affected less than five percent of the entire body, less than five percent of the exposed body, and required no more than topical therapy. CONCLUSION OF LAW The criteria for a 10 percent rating, but no higher, for onychomycosis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Codes 7804, 7806, 7813. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1987 to January 2007. These matters are before the Board of Veterans' Appeals(Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In June 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. A transcript of his testimony is of record. In December 2017 and January 2018 decisions, the Board denied the Veteran's claims for increased ratings for allergic rhinitis, sinus headaches, and onychomycosis of the bilateral great toes. The Veteran appealed the decisions to the United States Court of Appeals for Veterans Claims (Court). In March 2019 and April 2019 Joint Motions for Remand (JMR) the parties agreed that the Board provided an inadequate statement of reasons for denying the claims. These matters were last before the Board in December 2019, when they were remanded for additional development. 1. Entitlement to a compensable rating for onychomycosis of the bilateral great toes The Veteran filed a claim for an increased rating in October 2009. He asserts that his service-connected bilateral onychomycosis is more severe than is reflected by his current disability rating. Specifically, he contends that a higher rating is warranted because his toenails are painful, tender, and sore. See August 2019 correspondence. 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 (2012); 38 C.F.R. § 4.1 (2020). The Veteran's onychomycosis has been assigned a noncompensable disability rating pursuant to 38 C.F.R. § 4.118, Diagnostic Codes 7899-7806 (2020). However, as onychomycosis (tinea unguium) is a listed disability, the appropriate code for evaluating his condition is Diagnostic Code 7813. 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. However, 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). 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, onychomycosis is to be rated as dermatitis under Diagnostic Code (DC) 7806 or as scars. 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) (2020). 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 Diagnostic Codes 7806, 7809, 7813-7816, 7820-7822, and 7824. At a December 2009 general medical examination, the Veteran reported he had onychomycosis on the bilateral toenails. The examiner noted that the Veteran's onychomycosis did not involve the face, neck, or head. The Veteran reported crusting on his toenails but denied any treatment within the past 12 months. He also reported that that his onychomycosis limited the type of shoes he that could wear because pressure caused soreness. Examination revealed crusting, inflexibility of less than six square inches and abnormal texture less than six square inches. There was no evidence of ulceration, exfoliation, disfigurement, tissue loss, induration, hypopigmentation, hyperpigmentation, or limitation of motion. The examiner opined that the Veteran's onychomycosis comprised zero percent of exposed areas and less than one percent of the whole-body area. The examiner found no evidence of systemic disease. The examiner characterized the Veteran's onychomycosis as an active condition, manifested by subjective crusting and objective lesions. On his February 2010 notice of disagreement, the Veteran reported that his service-connected disabilities, including his onychomycosis of the bilateral toes, severely compromised his quality of life. At his June 2015 hearing, the Veteran testified that his onychomycosis resulted in buildup and pressure underneath his bilateral big toenails, which he had to dig out with a pedicure tool. He also noted that his onychomycosis caused nail thickening and irritation of his two big toes and that they were "real sore." He reported that he had only sought VA treatment for this condition on one occasion, at which time he had been prescribed Lamisil with some success. However, when asked when he had been prescribed Lamisil the Veteran clarified that he did not remember the dates, but he thought it was during his military service while he was stationed in Germany. Regarding current treatment, he reported that he used over-the-counter topical antifungal medication. He indicated that while he was aware that oral medication, such as Lamisil, would be more effective he did not want to use medications because it could negatively impact his liver functioning. At his March 2016 VA skin examination, the Veteran reported that he treated his onychomycosis of the bilateral great toenails with Lamisil on one occasion and that it had cleared the condition for a time but eventually returned. He reported that his standard treatment was over-the-counter topical medication. The examiner noted that the Veteran received debridement and Lotrimin solution through VA in the past but was not receiving treatment currently. The examiner indicated that the Veteran's onychomycosis did not result in scarring or disfigurement of the head, face, or neck; or systemic manifestations. The Veteran denied treatment with oral or topical medication in the past 12 months. At his October 2017 VA skin examination, the Veteran reported that he had an ongoing fungal infection of the bilateral great toes. He noted that the condition had previously been treated with Lamisil without relief. He reported that during flare ups he had pain and difficulty when clipping or cutting his toenails. The examiner indicated that the Veteran's onychomycosis of the bilateral great toes did not result in scarring or disfigurement of the head, face, or neck, skin neoplasms, or any systemic manifestations. The examiner stated that during the prior 12 months the Veteran's skin condition had not been treated with oral or topical medications, systemic corticosteroids or other immunosuppressive medications, antihistamines, immunosuppressive retinoids, sympathomimetic, other oral medications, photo-chemotherapy, ultraviolet B phototherapy, electron beam therapy, intensive light therapy, or other treatment. The Veteran denied any debilitating or non-debilitating episodes due to urticarial, cutaneous vasculitis, erythema multiforme, or toxic epidermal necrolysis in the prior 12 months. The examiner opined that the Veteran's onychomycosis of the bilateral great toes affected less than 5 percent of his total body area and no exposed body area. After a review of the record, the Board finds that a 10 percent rating, but no higher is warranted. As an initial matter, the evidence of record reflects that the Veteran's bilateral onychomycosis has not warranted a compensable rating under Diagnostic Code 7806. See December 2009, March 2016, October 2017 VA Examination Reports (stating it affects less than 5 percent of his total and exposed body area, and has not required systemic therapy). While the Board acknowledges that the evidence indicates that the Veteran's onychomycosis was treated with oral Lamisil on one occasion, the weight of medical evidence, including the Veteran's own statements, indicates that treatment occurred during his military service and not during the pendency of the appeal. Accordingly, a compensable rating is not warranted under the criteria detailed under Diagnostic Code 7806. Nevertheless, under both Diagnostic Code 7806 and the General Rating Formula skin disorders can be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 7801-7805), depending upon the predominant disability. In the present case, tender, sore, and painful thick and discolored bilateral great toenails are the predominant disability caused by the Veteran's onychomycosis. As such, resolving reasonable doubt in his favor, the Board finds that the Veteran's tender great toenails are analogous to painful scars under Diagnostic Code 7804. The Board notes that Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note (1) to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Accordingly, the Board finds that a 10 percent rating under Diagnostic Code 7804, is warranted. While the Veteran's onychomycosis does not result in any actual scars, it results in two tender, sore, and painful toenails. See e.g., March 2016 and October 2017 VA examination reports; June 2015 hearing transcript; and August 2019 correspondence (indicating that the Veteran's bilateral great toes are tender, sore, and painful). Thus, based on his manifestations, and resolving all doubt in the Veteran's favor, the Board finds that his onychomycosis warrants a 10 percent rating under Diagnostic Code 7804 as his predominant disability. Nevertheless, a higher rating is not warranted as the Veteran's onychomycosis only affects his two great toenails, and thus is consistent with, at most, two painful scars. Further, Note (2) under Diagnostic Code 7804 provide that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (2) describes an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. While the Veteran's toenails are discolored, thick, and cause pain there is no indication that they result in manifestations consistent with a frequent "loss of covering of the skin over the scar." As such, the Board finds an additional 10 percent rating should not be added. The Board has also considered whether a higher or separate rating under Diagnostic Code 7805 is warranted for any disabling effect not considered under Diagnostic Code 7804. However, the only functional impairment is soreness and pain during flare-ups, with pressure from shoes, and while clipping his nails. See VA examination reports from December 2009, March 2016, and November 2017. As pain and soreness is already compensated under the 10 percent rating assigned herein a higher or separate rating under Diagnostic Code 7805 is not warranted. Consequently, the Board finds that a 10 percent rating, but no higher, for the Veteran's bilateral onychomycosis is warranted. In reaching this decision, the Board has resolved all doubt in the Veteran's favor. However, insofar as the Board has denied higher or separate ratings herein, the preponderance of the evidence is against such aspects of the Veteran's claim and, thus, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to a compensable rating for sinus headaches is remanded. 2. Entitlement to a compensable rating for allergic rhinitis for the period prior to September 28, 2020 is remanded. 3. Entitlement to a rating in excess of 10 percent for allergic rhinitis since September 28, 2020 is remanded. 4. Entitlement to a TDIU is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives. In pertinent part, the December 2019 remand directed that the Veteran be provided VA examination to assess the nature and severity of his allergic rhinitis and sinus headaches. It further directed that in assessing the severity of the conditions the examiner must indicate whether his medications had ameliorating effects and, if so, estimate the severity of the conditions without considering the ameliorating effects of medication. While the Veteran was provided VA sinus and headache examinations in March 2020 and September 2020, neither examination report discussed the ameliorating effects of the Veteran's medications nor estimated the severity of his conditions without medication. Thus, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, VA treatment records from December 15, 2017, January 18, 2019 March 5, 2019 note that radiology imaging records from December 14, 2017, January 3, 2019, and February 8, 2019 as well as a January 30, 2019 lumbar spine pain management notes had been scanned. It does not appear that the referenced records have been associated with the claims file. As these records address the severity of the Veteran's service-connected lumbar spine disability, they are potentially relevant to the Veteran's TDIU claim. Accordingly, such records must be requested on remand. Finally, the Board notes that the October 2020 Supplemental Statement of the Case (SSOC) was inadequate regarding the Veteran's increased rating claim for his allergic rhinitis. Specifically, the SSOC only addressed the issue of entitlement to a rating in excess of 10 percent. However, the 10 percent rating was not in effect until September 28, 2020. As such, the propriety of the noncompensable rating for the earlier period remained on appeal and should have been addressed in the SSOC. The matters are REMANDED for the following actions: 1. The VistA Imaging records referenced in the December 15, 2017, January 18, 2019, and March 5, 2019 VA record entries should be associated with the claims file. If any requested records are unavailable, the Veteran should be notified of such. 2. After the above record development is completed to the extent possible, forward the claims file to a VA clinician to obtain addendum opinions regarding the Veteran's allergic rhinitis. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should state whether any medication taken since October 2009 has any ameliorating effects on his allergic rhinitis symptoms and, if so estimate the severity of the Veteran's allergic rhinitis without these effects. The clinician should address the December 2009 examination report noting that the Veteran's allergic rhinitis was treated with Flonase, the March 2016 VA headache examination report noting that the Veteran takes over the counter medications, including Aleve and Vapor rub to help his sinuses, the March 2016 VA sinus examination report noting that his allergic rhinitis "is significantly controlled with nasal sprays and Loratadine," the January 23, 2017 VA treatment record noting that his allergic rhinitis was well controlled with Flonase and Loratadine, the March 2020 VA examination report noting that the Veteran uses "NSAIDS OTC prn and [F]lonase," and the September 2020 VA examination report noting that the Veteran uses nasal washes. If the requested retrospective opinions cannot be provided, the examiner should explain why. 3. After the above record development is completed to the extent possible, forward the claims file to a VA clinician to obtain addendum opinions regarding the Veteran sinus headaches. If an examination is deemed necessary to respond to the questions presented, one should be scheduled. Following review of the claims file, the clinician should state whether any medication taken since October 2009 has any ameliorating effects on his sinus headache symptoms and, if so estimate the severity of the Veteran's sinus headaches would be without these effects. The clinician should address December 2009 examination report noting that when his headaches occur the Veteran "is able to work but requires medication," the March 2016 examination report noting that he takes over the counter medications, including Aleve and Vapor Rub to help his sinus headaches, and the March 2020 VA headache examination report noting that the Veteran uses "NSAIDS" and Flonase for his sinus headaches. If the requested retrospective opinions cannot be provided, the examiner should explain why. 4. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.