Citation Nr: 21031405 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-31 056 DATE: May 21, 2021 ORDER An increased rating for onychomycosis of the toenails in excess of 10 percent prior to October 13, 2015, and 60 percent, thereafter, is denied. FINDINGS OF FACT 1. Prior to October 13, 2015, the Veteran's onychomycosis was manifested by infections of the skin between 5 percent and less than 20 percent of total body area and less than five percent of exposed area, without the use of systemic therapy. 2. As of October 13, 2015, the Veteran's onychomycosis is rated as 60 percent disabling, which is the maximum schedular rating permitted for infections of the skin. CONCLUSIONS OF LAW 1. The criteria for an increased rating for onychomycosis of the toenails in excess of 10 percent prior to October 13, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes (DCs) 7813 and 7820. 2. The criteria for a rating in excess of 60 percent for onychomycosis of the toenails as of October 13, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes (DCs) 7813 and 7820. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1967 to February 1971. He testified at a videoconference hearing before the undersigned in April 2019. A transcript of the hearing is of record. In April 2019, the Board remanded the Veteran's increased rating claim for onychomycosis for further development. This was accomplished and in a January 2020 rating decision, the rating of the onychomycosis was increased to 60 percent disabling, effective October 13, 2015. The Regional Office (RO) has since issued an April 2021 rating decision that proposes to reduce the 60 percent disability rating for the Veteran's onychomycosis to 10 percent based on clear and unmistakable error (CUE). Although the Veteran has attempted to appeal April 2021 rating decision to the Board, by filing a May 2021 VA Form 10182, Notice of Disagreement, the rating reduction was proposed only and not final, so the matter is not before the Board at the present time. Entitlement to a rating in excess of 10 percent prior to October 13, 2015, and in excess of 60 percent from that date for onychomycosis of the toenails. The Veteran contends that the fungal infection of his toes is more disabling than currently evaluated. During the April 2019 Board hearing, the Veteran testified that he had been administered steroid medication, which would make him eligible for a higher rating. An examination was conducted by VA in October 2012. At that time, the diagnosis was fungus infection of the toenails and fingernails. The Veteran had an additional diagnosis of seborrheic keratosis. It was noted that the Veteran utilized topical medications including Tazorac gel and Hydra topical foam for his toenails. These were utilized constantly or nearly constantly. His treatment regime did not include systemic corticosteroids or other immunosuppressive medications, antihistamines, sympathomimetics, topical corticosteroids, or other oral medications. He had no debilitating or non-debilitating episodes. The infections of the skin were between 5 percent and less than 20 percent of total body area and less than five percent of exposed area. The examiner stated that the Veteran's skin infection did not impact his ability to work. In a February 2014 report of private treatment, the Veteran's private dermatologist noted that he treated the Veteran for onycholysis of the toenails. Recommended treatment was continued use of Urea cream and Tazorac gel to the toenails. An examination was conducted by VA in December 2015. The diagnoses were onychomycosis and psoriasis. (The Board notes that service connection for psoriasis was denied by rating decision dated in July 2013 rating decision without appeal by the Veteran.) Regarding treatment, it was noted that the Veteran used topical medications on a constant, or near-constant basis. These medications were primarily for his non-service-connected psoriasis. In addition, the Veteran was treated with ultraviolet B phototherapy on a constant or near-constant basis. The Veteran did not report having any debilitating or non-debilitating episodes of related to skin disease over the past 12 months. Skin infection was noted to be between 5 percent to less than 20 percent of total body area with no exposed area affected. It was also noted that the Veteran had thick dystrophic nails and dry skin between the toes and dry flaking along the nail beds. The Veteran reported having pain when walking with his feet being sore and his shoes bothering him when the nails hit the shoes. VA outpatient treatment records show that the Veteran has been seen periodically for management of his psoriasis and skin infection of the feet. In July 2014, it was noted that the Veteran was given injections of Kenalog beneath each toenail. The risks involved with steroid atrophy were discussed. Additional treatment records show that he received Kenalog injections of each toenail again in August 2015, and that he had a good response from these injections. In June 2019, the Veteran was noted to have received injections of Kenalog, but these were to the elbow and right thigh and did not involve his service-connected onychomycosis. The Veteran's medical records were reviewed by VA in December 2019. The examiner was asked to render an opinion regarding whether the Veteran's use of Kenalog, as noted in the VA treatment records, constituted systemic therapy in that it was of sufficient scale to affect the body as a whole and, if so, whether the Veteran's Kenalog treatment was similar to corticosteroids or other immunosuppressive drugs. The examiner reviewed the record and noted that the Veteran had been treated with topical medications in 2012 and 2014, and had Kenalog injections to psoriasis of the toenails which was topical and not systemic in June 2014. The examiner then went on to state that the Veteran was administered injections of Kenalog for psoriatic toenails, which was a steroid medication (corticosteroid) that was used on less than five percent of his body (toenails). The examiner further stated that this was "topical not systemic," and explained that the medication had been injected only because of the need to penetrate the toenail. The examiner also stated it was "not taken orally-systemic." The Veteran's onychomycosis has been rated under Diagnostic Codes (DC) 7813 and 7820, which, in turn, are rated under DC 7806. 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, instructed to rate as disfigurement of the, face, or neck (DC 7800) or scars (DCs 7801, 7802, 7803, 7804, or 7805), or dermatitis (7806) depending on the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7813 and 7820. Here, the evidence of record demonstrates that the predominant disability is dermatitis. The involvement is only of the toes, without involvement of the head, face, or neck and does not involve scarring. Prior to August 13, 2018, under Diagnostic Code 7806, a noncompensable rating was 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 was 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 was 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 was 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, the disability was to be rated as disfigurement of the head, face, or neck (DC 7800) or scars (DCs 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 United States Court of Appeals for Veterans Claims (Court) held that a systematic therapy was one that that affected 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 needed be addressed if the treatment was clearly systemic. Id. Effective August 31, 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: (1) characteristic lesions involving less than 5 percent of the entire body affected; or (2) characteristic lesions involving less than 5 percent of exposed areas affected. A 10 percent rating is assigned for at least one of the following: (1) characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; or (2) at least 5 percent, but less than 20 percent, of exposed areas affected; or (3) 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: (1) characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) 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: (1) characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or (2) 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 (DCs 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. As noted above, in this case, the predominant disability is analogous to dermatitis. The Board finds that the preponderance of the evidence prior to October 13, 2015, is against the assignment of a rating in excess of 10 percent under the pre-August 13, 2018, regulations because the Veteran's onychomycosis did not more nearly approximate 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; need 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. The examinations of record show that the Veteran's involvement was between 5 and less than 20 percent of overall body and, while the Veteran is shown to have injections of Kenalog in 2014 and 2015, this was not shown to have been the equivalent of systemic therapy or immunosuppressive drugs for a total duration of six weeks or more. Under the circumstances of this case, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent prior to October 13, 2015, because the Veteran's onychomycosis did not more nearly approximate (1) characteristic lesions involving more than 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or (2) systemic therapy required for a total duration of 6 weeks or more, but not constantly, 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 rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include the manifestations of his onychomycosis, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The medical treatment records do not, however, show, that the Veteran's disability more nearly approximates the criteria in the next higher rating. Specifically, the December 2019 VA opinion is that the treatment of Kenalog was topical and not systemic and that it was injected only because of the need to penetrate the toenail. It was also not taken orally nor was it systemic. As such, there is no need to ascertain whether it is a steroid in nature or steroid-like. Burton 30 Vet. App. at 286. 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 he 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 of a rating in excess of 10 percent for onychomycosis prior to October 13, 2015. 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. Regarding the rating of 60 percent that was made effective on October 13, 2015, the Board notes that this is the maximum schedular evaluation for a skin disability under either set of applicable regulations. (The Board makes no determination regarding the propriety of this rating or the proposed reduction based on CUE, see April 2021 rating decision). As the Veteran is in receipt of the highest schedular rating under Diagnostic Codes 7813 or 7820, there is no basis to award a higher rating. Again, 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 he would warrant a higher rating under a different diagnostic code. See 38 C.F.R. § 4.118. In conclusion, the Board finds that the evidence is against the Veteran's claim of a rating in excess of 60 percent, from October 13, 2015, for onychomycosis. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.