Citation Nr: 21028923 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-36 494 DATE: May 12, 2021 ORDER Entitlement to a compensable initial disability rating for onychomycosis of the toenails is denied. REMANDED Entitlement to a compensable initial disability rating for a left shoulder strain prior to September 29, 2017, and in excess of 20 percent, thereafter, is remanded. Entitlement to a compensable initial disability rating for lumbar strain prior to September 29, 2017, and in excess of 10 percent, thereafter, is remanded. Entitlement to a compensable initial disability rating for left tibial plateau fracture prior to September 29, 2017, and in excess of 10 percent, thereafter, is remanded. Entitlement to a compensable initial disability rating for sinusitis is remanded. FINDING OF FACT The Veteran's onychomycosis of the toenails is not manifested by scars or disfigurement of the head, face, or neck; does not affect at least 5 percent of his entire body or of exposed areas; and has not required intermittent or longer systemic therapy. CONCLUSION OF LAW The criteria for a disability rating for onychomycosis of the toenails have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7820-7806. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from May 2000 to March 2014. These matters are before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2018, the Board remanded these matters for further evidentiary development. 1. Entitlement to a compensable initial disability rating for onychomycosis of the toenails. In general, ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. With a claim for an increased initial rating, separate "staged" ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. 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, Diagnostic Codes 7813 and 7820 direct that dermatophytosis and infections of the skin not listed elsewhere be evaluated as disfigurement of the head, face, or neck (Diagnostic Code 7800); scars (Diagnostic Codes 7801, 7802, 7804 and 7805); or dermatitis (Diagnostic Code 7806), depending on the predominant disability. Under Diagnostic Code 7806, 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. The disability may be rated 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 Code 7806. For claims filed prior to August 13, 2018, the Court of Appeals for Veterans Claims 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, 7813 and 7820. See 38 C.F.R. § 4.118. Under this formula, 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. The disability may be rated 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, General Rating for the Skin for Diagnostic Codes 7806, 7813 and 7820. The Veteran generally contends that he is entitled to a compensable evaluation for onychomycosis of the toenails. The Veteran's onychomycosis of the toenails is rated under Diagnostic Code 7820-7806. Here, the evidence of record, discussed below, demonstrates that the predominant disability is onychomycosis, as the disability is not located on the head, face, or neck and is not characterized by scars. The Board finds that the preponderance of the evidence is against the assignment of a compensable evaluation for onychomycosis of the toenails under the prior or revised regulations because it 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; did not require intermittent systemic therapy for a total duration of less than six weeks during the past 12-month period; and does not result in scars or disfigurement of the head, face, or neck. A March 2014 and a September 2017 VA Skin Diseases Disability Benefits Questionnaire (DBQ) provide a diagnosis of onychomycosis. The Veteran's condition did not cause scarring of any location or disfigurement of the head, face, or neck. The Veteran had not been treated with oral or topical medications in the past 12 months for any skin condition. The Veteran's onychomycosis affected less than 5 percent of non-exposed area and none of the exposed area of the body. The Board notes that this evidence is uncontroverted in the record. The Board acknowledges that the Veteran believes that his onychomycosis of the toenails is more severe than the assigned disability rating reflects. While the Veteran is competent to report observable symptoms, he has not done so in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has considered whether any other Diagnostic Codes related to disabilities of the skin would provide for a higher disability evaluation. However, the evidence does not reflect that his onychomycosis of the toenails would warrant a higher rating under a different Diagnostic Code. 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 a compensable evaluation for onychomycosis of the toenails. 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 2. Entitlement to a compensable initial disability rating for a left shoulder strain prior to September 29, 2017, and in excess of 20 percent, thereafter. 3. Entitlement to a compensable initial disability rating for lumbar strain prior to September 29, 2017, and in excess of 10 percent, thereafter. 4. Entitlement to a compensable initial disability rating for left tibial plateau fracture prior to September 29, 2017, and in excess of 10 percent, thereafter. 5. Entitlement to a compensable initial disability rating for sinusitis. A screenshot of the Veterans Evaluation Services online record reflects the Veteran was to be scheduled for VA examinations on December 27, 2019. January 2020 Exam Scheduling Request Contention Cancellation sheets show the examinations were cancelled because the Veteran was a "no show." There were no notice letters associated with the electronic claims file informing the Veteran of the location, date, and time of the examination. The Veteran has had a history of responding to VA correspondence in a routine and timely manner. In fact, the evidence of record shows that the Veteran's mailing address appears to have changed during the appeal period. A June 2020 supplemental statement of the case (SSOC) was mailed by VA to an address in Spokane, Washington. In July 2020, the Veteran filed new claims for compensation and listed a different address in Hayden, Idaho. See July 2020 VA Form 21-526EZ. Since then, all VA correspondence has been mailed to the address in Hayden, Idaho. Based on the foregoing, it is unclear to the Board whether notice of the scheduled VA examination was mailed to the Veteran's correct address. The Board is further unable to discern the amount of times VA attempted to contact the Veteran to schedule updated VA examinations or to ascertain whether he received appropriate notice of a scheduled VA examination. Therefore, the Board finds that there is insufficient evidence of record to conclude that the AOJ complied with the Remand directive. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the remand). However, the Veteran is advised that VA's duty to assist is not a "one-way street," and an appellant seeking help cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). It is generally the Veteran's burden to keep VA apprised of his whereabouts. If he does not do so, VA is not obligated to "turn up heaven and earth to find him." See Hyson v. Brown, 5 Vet. App. 262, 265 (1993). As such, the Board finds that the RO should try to verify the Veteran's current mailing address, to include contacting his representative if necessary, and to reschedule the VA examinations and provide notice accordingly. The matters are REMANDED for the following action: 1. Contact the Veteran to confirm that the addresses and phone numbers provided to VA are correct and current. If a different address or phone number is identified, update VA's records to indicate the current information. All efforts to confirm the Veteran's current address and phone number must be documented in the record. 2. After completion of the above development, arrange for the Veteran to undergo a VA examination to determine the current nature and severity of his service-connected left shoulder, back, and left tibial fracture. The electronic claims file must be made available to the examiner for review in conjunction with the examination. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. Based on this review of the record and the examination and interview of the Veteran, the examiner should provide opinions that respond to the following: Left Shoulder and Back Please conduct and document range of motion studies that include active AND passive motion and weight-bearing AND non-weight-bearing motion. The examiner should note any further functional limitations due to pain, weakness, fatigue, incoordination, or any other such factors. If the VA examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. All findings should be reported in detail. Please also ask the Veteran to identify the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups. The examiner is asked to request the Veteran to identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on the information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. In providing all of the requested opinions, the examiner should consider the Veteran's competent lay statements regarding the observable symptoms he has experienced, including those associated with flare-ups. Left Tibial Fracture (a) Describe all symptomatology due to the Veteran's left tibial fracture. (b) Determine whether there is any pain, weakened movement, excess fatigability, or incoordination on movement, and the degree to which any additional range of motion is lost due to any of the following: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. (c) Address whether the Veteran's left fibula fracture caused nonunion with loose motion or malunion with slight, moderate, OR marked knee or ankle disability. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups. All limitation of function must be identified. If there is no pain and/or limitation of function, such facts must be noted in the report. A detailed explanation (rationale) is requested for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. 3. Arrange for a VA sinus examination to assess the nature and current severity of the Veteran's service-connected sinusitis. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. Based on this review of the record and the examination and interview of the Veteran, the examiner should provide opinions that respond to the following: SERVICE CONNECTION IS ALREADY IN EFFECTFOR SINUSITIS. THE EXAMINER IS THEREFORE TO ASSUME FOR PURPOSES OF THIS EXAMINATION THAT THE VETERAN HAS A CURRENT DIAGNOSIS OF SINUSITIS. (a) Describe all manifestations and the severity of the Veteran's service-connected sinusitis in accordance with the rating criteria. (b) Provide a retrospective opinion addressing the severity of the Veteran's service-connected sinusitis. If the examiner is unable to provide a retrospective opinion, he or she should clearly explain so in the report. (c) Does the Veteran have any additional diagnoses/disorders, to include rhinitis? If so, state whether each diagnosis/disorder is a direct symptom of his sinusitis or whether it is a separate disorder that (i) was at least as likely as not incurred in or otherwise related to the Veteran's service or (ii) was at least as likely as not caused or AGGRAVATED (i.e., any increase in severity beyond natural progression) by his service-connected sinusitis. If the examiner is unable to make a distinction between the symptoms caused by sinusitis and the symptoms of any other disorder, then he or she should expressly so state and consider all such symptoms in the aggregate as part and parcel of the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). The examiner should consider and address as necessary the Veteran's statements regarding the frequency and symptoms of his sinusitis. A detailed explanation (rationale) is requested for all opinions provided. By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested. 4. Should the Veteran fail to report to a scheduled VA examination, such must be fully documented in the record, to include notice that the Veteran was contacted at his current address of record and properly notified of his scheduled examination. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.