Citation Nr: 21031988 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 16-15 780 DATE: May 25, 2021 ORDER Entitlement to a compensable rating for onychomycosis and tinea pedis of the bilateral feet is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. FINDINGS OF FACT 1. Throughout the entire period on appeal, symptoms of the Veteran's service-connected tinea pedis affected a total body area of less than 5 percent and required no more than topical therapy during the past twelve months of the appeal period. 2. The weight of the competent and probative evidence shows at worst Level I for the right ear and Level IV for the left ear and does not reflect an exceptional pattern of hearing loss in either ear. CONCLUSIONS OF LAW 1. Throughout the entire period on appeal the criteria for a compensable disability rating for onychomycosis and tinea pedis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7806. 2. The criteria for a compensable rating for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.85-4.86, Diagnostic Code (DC) 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2012, March 2014, and June 2014 rating decisions of the Department of Veterans Affairs (VA). These matters were remanded by Board in November 2018 for additional development. Increased Ratings Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. In a claim for a higher original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. 1. Entitlement to a compensable rating for onychomycosis of the bilateral feet The Veteran seeks compensable rating for his service-connected onychomycosis affecting the bilateral feet. The Veteran is currently assigned a noncompensable rating for his service-connected onychomycosis pursuant to 38 C.F.R. § 4.118, Diagnostic Code (DC)7806. The Board notes that the Schedule for Rating Skin Disabilities was amended in August 2018 so that it more clearly reflects VA's policies concerning the evaluation of skin disorders, specifically, 38 C.F.R. § 4.118, DC 7801, 7802, 7805, 7806, 7813, 7815-7817, 7820-7822, and 7824-7829 (2018). The new regulations apply to claims filed on or after August 13, 2018 and claims pending on August 13, 2018, if the new regulation is more favorable for the Veteran. 38 C.F.R. § 4.118 (2018). Although the Veteran's application was received by VA prior to the August 13, 2018 effective date for the revised skin regulations, the Board will consider its application to the Veteran's claim for increased rating from the effective date of the change. Under the regulations in effect at the time the Veteran filed his claim in February 2018, under DC 7813, the disability should be rated as disfigurement of the head, face, or neck (DC 7800); scars (DCs 7801, 7802, 7803, 7804, or 7805); or dermatitis (DC 7806); depending upon the predominant disability. 38 C.F.R. § 4.118. The Board, however, finds that most of these DCs are inapplicable here. In that regard, DC 7800 is inapplicable in that the Veteran's skin disorder does not cause disfigurement of the head, face, or neck. DC 7801 governs scars that are deep and nonlinear. DC 7802 governs scars that are superficial and nonlinear and affect an area or areas of at least 144 square inches. DC 7804 governs scars that are unstable or painful. DC 7805 provides that other scars and effects of scars evaluated under the above DCs require the evaluation of any disabling effect(s) not otherwise considered. 38 C.F.R. § 4.118. Here, however, as the evidence establishes that there is no scarring or disfigurement present, and no disabling effects have been demonstrated, the Board finds that the Veteran's skin disorder is appropriately rated as dermatitis under DC 7806. DC 7806 provides the following evaluations for dermatitis: a noncompensable (0 percent) rating is assignable when less than 5 percent of the entire body or less than 5 percent of exposed areas are affected; and no more than topical therapy is required during the past 12-month period. A 10 percent rating is assignable when 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 are affected; or, intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is assignable when 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected or where 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 assignable where 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. 38 C.F.R. § 4.118. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that under the prior version of 38 C.F.R. § 4.118 the term topical treatment can be considered systemic therapy if, based upon the factual circumstances of each case, it involves a corticosteroid that affects the entire body system, such as through the bloodstream, or if it is non-corticosteroid but operates like a corticosteroid that affects the entire body system. See Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017). The Federal Circuit's interpretation of the term "systemic therapy" in the revised criteria applies throughout the entire period prior to the August 13, 2018 effective date of the new criteria. Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (noting that a new interpretation of a statute retroactively affects decisions still open on direct review). The revised criteria effective August 13, 2018, provide that disabilities under DC 7806 (dermatitis or eczema) and DC 7813 (dermatophytosis (ringworm: of body, tinea corporis; of head, tinea capitis; of feet, tinea pedis; of beard area, tinea barbae; of nails, tinea unguium (onychomycosis); of inguinal area (jock itch), tinea cruris; tinea versicolor)) are to be evaluated under the General Rating Formula for the Skin. It is additionally noted that: (a) systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin, and that (b) two or more skin conditions may be combined only if separate areas of skin are involved and that if two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used. 38 C.F.R. § 4.118. A 10 percent rating is assigned if the disability meets 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, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a duration of 6 weeks or more, but not constantly, over the past 12-month period. A 30 percent rating is assigned if the disability meets at least one of the following: characteristic lesions involving 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 if the disability meets 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, PUVA, or other immunosuppressive drugs required over the past 12-month period. The Board has carefully reviewed the evidence of record and finds the evidence in this case does not warrant a compensable rating throughout the period on appeal. A February 2014 VA skin examination report shows that the Veteran was diagnosed with onychomycosis in 1980. The Veteran reported that his podiatrist grinded down nails on a regular basis to minimize pain. The Veteran's condition was noted to disturb his gait due to pain and had developed neuromas of the feet. The examiner noted that the skin condition did not cause scarring or disfigurement of the head, face, and neck. Systemic manifestation due to any skin disease were not assessed. The examiner noted that the Veteran was treated with topical medications in the past 12 months for the duration of 6 weeks or more but not constant. Other treatments were noted as laser destruction to treat the onychomycosis. Debilitating and non-debilitating episodes were not assessed. Physical examination showed that total body area affected was less than 5 percent and total exposed areas was noted as none. The examiner noted that all of the Veteran's bilateral toenails were affected with very thickening dystrophic nails and bilateral soles with scaling. Pain was also assessed related to thickening of toenails and pressure from shoes. A February 2016 VA skin examination report shows that the Veteran's onychomycosis of the bilateral feet was being treated with topicals with no improvement. The Veteran reported oral Lamisil about 10 year ago with no improvement, and currently saw a podiatrist to treat thickening of his nails. The Veteran reported that he was embarrassed by his condition and was asked by a hotel manager not to swim in hotel pool due ot appearance of his toenails. The Veteran also reported that he experienced pain in his toenail plates with a difficulty to walk at times. Scaring and disfigurement of the head, face, or neck were not assessed by the VA examiner. No systemic manifestation were assessed. Topical antifungal treatment was noted to be used to treat his toenails at a constant or near constant duration. No debilitating or non-debilitating episodes were assessed. Physical examination of the skin showed total body area affected was less than 5 percent and none for exposed area. The examiner noted location of the condition as on the bilateral feet resulting in scaling of the feet, and thickening and brown discoloration of all ten toenail plates. The examiner noted that the Veteran reported pain in the toes and nail plates of toes with sensitivity. Pain while walking was assessed. A June 2017 VA skin examination report shows the Veteran reported current symptoms of his toes consisting of nail thickening, discoloration, pain, sensitivity, and pruritus. The Veteran reported he was not a good candidate for a trial of oral antifungal medication because he was taking cholesterol medication. The examiner noted that the skin condition did not cause scarring or disfigurement of the head, face, or neck. Topical medication was noted be used at a constant/near-constant duration. Debilitating or non-debilitating episodes were not assessed. Physical findings were noted as pink papules, scaling, and all ten toenails were discolored and thickened. The examiner noted that the nails were well groomed and did not extend over the distal toe. No abnormal thickening was noted for onychomycosis. No functional impact resulting from the condition was assessed. A September 2019 statement submitted by the Veteran's spouse reported that he was embarrassed by the appearance of his feet, and would have to go periodically to podiatrist to have his toenails ground down to get some relief from pain. A February 2020 VA addendum examination report shows that the examiner noted that the Veteran was observed walking into and out of exam room with unremarkable gait and no pain reported. The Veteran denied neuroma recurrence since 2013, and it was that examiner opinion that the treated neuroma was an acute process, due to acute trauma (such as a bad misstep), a callus, a corn, or ill-fitting shoes, and was not due to onychomycosis, which was a chronic issue. The examiner remarked that if onychomycosis was the cause of the 2013 neuroma, then as long as the onychomycosis was present then rationally the neuroma would have been recurring, which it was not. The examiner also reported that the neuroma only occurred on the left foot and the Veteran's onychomycosis was observed bilaterally. Physical examination shows that the Veteran had no evidence of fungus, or any rash, on his heels or ankles. The Veteran reported that many years ago he was given a cream for a rash on the heels and ankles. He was unsure of what the cream was but it cleared up the rash after using for 3 weeks. The Veteran reported that he had not needed to use the cream since. A September 2020 VA skin examination report shows the Veteran was diagnosed with onychomycosis and tinea pedis affecting the bilateral toes and feet. The Veteran was noted to use tinactin as needed for tinea pedis and had tried oral antifungal medication for onychomycosis. The examiner noted that the skin condition affected less than 5 percent of the body area and no exposed area was affected. The examiner noted that the Veteran had thickening of toenail beds affecting all his toes. Red flakey, scaly skin of the feet and heels were also assessed. Scaring and disfigurement of the head, face, or neck were not assessed. Functional impairments were not assessed. In February 2021, the Veteran submitted correspondence contending that his onychomycosis affecting his feet had spread to his face. He reported that his skin condition is now on his face, he should we awarded a compensable rating. He also submitted photographs of his skin condition affecting his face. Based on the evidence as outlined above, the Board finds that the symptoms associated with the Veteran's tinea pedis and onychomycosis do not meet the criteria for a compensable rating at any period of this appeal. Under the version of Diagnostic Code 7806, which was in effect prior to August 13, 2018, a 10 percent disability rating is warranted for dermatitis or eczema affecting 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, or; requiring 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. See 38 C.F.R. § 4.118. Under the version of Diagnostic Code 7806, which was in effect from August 13, 2018, a 10 percent rating requires 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, psoralen with long-wave ultra-violet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. 38 C.F.R. § 4.118, Diagnostic Code 7806. The evidence of record does not indicate that the Veteran's tinea pedis and onychomycosis affected 5 percent or more of the Veteran's total body area, and the evidence of record does not reflect that the Veteran's tinea pedis and onychomycosis required more than topical over the counter therapy during a relevant twelve month timeframe of the appeal period. The record does not indicate that the Veteran underwent or was recommended to undergo systemic therapy such as corticosteroids or other immunosuppressive drugs or that the topical therapy was equivalent to such systemic therapy. The Board notes that although a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, this possibility does not mean that all applications of topical corticosteroids amount to systemic therapy. See Johnson, supra. Although the Veteran's skin condition has required topical medications, these medications were not noted to be corticosteroid treatments. Additionally, the evidence shows that this skin condition of tinea pedis and onychomycosis have only involved his feet. There is no evidence that large portions of his anatomy are involved, as his skin condition affects less than 5 percent of his entire body and no exposed areas, and his treatment is topical and involves his feet including his toes only. Therefore, although his skin condition does require a topical treatment, this treatment cannot be considered systemic therapy as contemplated by the Federal Circuit in Johnson and does not rise to the level contemplated by the next higher 10 percent evaluation under Diagnostic Code 7806. The Board notes that the Veteran has asserted that his service connected onychomycosis and tinea pedis have spread to his face. However, the Board finds that the Veteran's assertions are outweighed by the medical evidence of record that shows these conditions were limited to his feet. Moreover, the Veteran is already service connected for tinea versicolor of the upper body for which he is receipt of a 10 percent rating, which is not currently on appeal. Additionally, Veteran, through correspondence and self -reports of symptoms has only referred to the condition of his feet for the entire appeal period until his September 2020 assertion. Multiple VA examiners have examined the Veteran and determined that the onychomycosis and tinea pedis did not affect his face or any exposed area. Therefore, the Board finds that the preponderance of the evidence shows that the skin condition on appeal has not spread to his face and his limited to his bilateral feet. The Board has also considered whether a higher rating was available under other potentially applicable diagnostic codes, however, the evidence did not demonstrate that the Veteran's service-connected skin disorder was manifested by scars or characteristics of disfigurements. 38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7802, 7804, 7805. The Board finds no other Diagnostic Codes are applicable to the Veteran's skin condition. The Board notes that the Veteran has reported subjective pain from his tinea pedis and onychomycosis that has caused him functional impairments results in an altered gait. In this regarding the February 2020 VA examiner noted that the Veteran had last had difficulty with walking in 2013 due to a left foot neuroma. The examiner reported that his neuroma was an acute condition and unrelated to the Veteran's service connected onychomycosis. Therefore, the Board finds the preponderance of the evidence shows that a separate rating for pain is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 2. Entitlement to a compensable rating for bilateral hearing loss The Veteran contends that he is entitled to a compensable rating for bilateral hearing loss, which is currently evaluated under Diagnostic Code 6100. He has reported that hearing loss affects his quality of life. Difficulty hearing and understanding speech, especially with background noise as in restaurants were also symptoms reported. The Veteran has stated that he must raise the volume high on TV. Disability ratings for hearing loss are assigned based on the results of controlled speech discrimination tests combined with the results of pure tone audiometry tests. See 38 C.F.R. §§ 4.85-4.86. An examination for VA rating purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test, specifically, the Maryland CNC test, and a pure tone audiometry test. 38 C.F.R. § 4.85(a). Further, disability ratings for hearing impairment are assigned through a structured formula, i.e., a mechanical application of the rating schedule to numeric designations that are assigned after audiometric evaluations have been rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). First, a Roman numeral designation of I through XI is assigned for the level of hearing impairment in each ear. Table VI is used to determine a Roman numeral designation based on a combination of the speech discrimination percentage and the average pure tone threshold, or the sum of the pure tone thresholds at 1000, 2000, 3000, and 4000 Hertz, divided by four. After a Roman numeral designation has been assigned for each ear, Table VII is used to determine the compensation rate by combining such designations for hearing impairment in both ears. 38 C.F.R. § 4.85. When the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher. 38 C.F.R. § 4.86(b). After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that Veteran is not entitled to a compensable disability rating for bilateral hearing loss. The Board first notes that the Veteran does not have an exceptional pattern of hearing impairment, as defined by 38 C.F.R. § 4.86. All applicable tests include valid pure tone and speech discrimination scores. As such, Table VI applies. See 38 C.F.R. §§ 4.85-4.86. On November 2011 VA audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 15 25 LEFT 5 5 40 55 60 Average Hertz for the right ear was 15 and for the left hear was 40. Speech audiometry revealed speech recognition ability of 96 percent in the right ear and of 100 in the left ear. On a March 2014 VA audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 10 10 25 25 LEFT 10 10 35 65 55 Average Hertz for the right ear was 18 and for the left hear was 41. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 96 in the left ear. On a February 2016 VA audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 15 35 LEFT 10 5 40 45 65 Average Hertz for the right ear was 15 and for the left hear was 39. Speech audiometry revealed speech recognition ability of 98 percent in the right ear and of 96 in the left ear. A February 2017 VA audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 10 25 40 LEFT 10 10 40 70 75 Average Hertz for the right ear was 21 and for the left hear was 49. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 in the left ear. A September 2019 statement submitted by the Veteran's spouse reported that he would ask her and other to repeat themselves, and turning up the volume of the television. On September 2020 VA audiological evaluation, puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 15 45 45 LEFT 25 25 50 70 75 Average Hertz for the right ear was 31 and for the left hear was 55. Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 78 in the left ear. Throughout the period on appeal using the above reported findings, the Veteran's right ear pure tone average combines with the right ear speech discrimination to yield no worse than a Roman numeral I in Table VI, and his left ear pure tone average also combines with the left ear speech discrimination for no worse than a Roman numeral IV, per Table VI. 38 C.F.R. § 4.85. The roman numeral I and IV combine for a zero, or non-compensable, rating in Table VII. The Veteran's private and VA treatment records do not contain audiological findings and do not indicate that his hearing loss is worse than indicated on VA examination. The Board has considered the Veteran's contentions of the effects hearing loss has in his daily life and that his hearing loss is worse than the rating reflects. VA's rating of hearing impairment is based on specific measurements that must be gathered by a state-licensed audiologist using specific tests, as discussed above. The Board finds that the competent medical evidence, to include the VA examination testing results, are more probative and outweigh the lay subjective reports of a more severe degree of disability, because they were provided by personnel with specialized training in hearing loss and directly address the rating criteria for the Veteran's hearing loss. The Board notes that VA's Schedule for Rating Disabilities has been found to contemplate the problems reported by the Veteran in terms of his difficulty hearing others. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that "the rating criteria for hearing loss contemplate the functional effects of difficulty hearing and understanding speech"). Accordingly, this claim for a higher rating is denied. The Board has considered the applicability of the benefit of the doubt doctrine, but the preponderance of the evidence is against a compensable rating. Under these circumstances, the doctrine is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). SONJA S. AN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.