Citation Nr: 21032519 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-27 254 DATE: May 27, 2021 ORDER Entitlement to a compensable rating prior to January 10, 2020, and exceeding 30 percent thereafter, for service-connected onychomycosis ("fungal infection"), is denied. Entitlement to a compensable rating prior to January 10, 2020, and exceeding 20 percent thereafter, for service-connected right lower extremity atherosclerotic arterial occlusive disease ("artery disease"), is denied. REMANDED Entitlement to a compensable rating for service-connected left lower extremity atherosclerotic arterial occlusive disease is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to October 29, 2020, is remanded. FINDINGS OF FACT 1. Prior to January 10, 2020, the Veteran's onychomycosis has not shown any compensable symptoms. 2. Beginning January 10, 2020, the Veteran's onychomycosis has manifested, at worse, to a severity level of dermatitis affecting 20 to 40 percent of the entire body or exposed area. 3. Prior to January 10, 2020, the Veteran's right lower extremity atherosclerotic arterial occlusive disease has not shown any compensable symptoms. 4. Beginning January 10, 2020, the Veteran's right lower extremity atherosclerotic arterial occlusive disease has manifested, at worse, to a severity level of claudication on walking more than 100 yards, and diminished peripheral pulses or ankle/brachial index of 0.9 or less. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable rating prior to January 10, 2020, and exceeding 30 percent thereafter, for service-connected onychomycosis ("fungal infection") have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7899-7813. 2. The criteria for entitlement to a compensable rating prior to January 10, 2020, and exceeding 20 percent thereafter, for service-connected right lower extremity atherosclerotic arterial occlusive disease ("artery disease") have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104, DC 7114. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1981 to July 1984, and active duty for training from January 2003 to August 2003. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 2016, the Veteran requested a videoconference hearing before a member of the Board. He withdrew this request in written correspondence received later that month, but his representative appears to have reinstated the request for a Board hearing in a May 2017 brief. To clarify any such request for hearing, VA sent the Veteran and his representative correspondence in November 2018. In that letter, VA informed the Veteran that if no response was received within 30 days, VA would proceed with the previous selection regarding the option of a Board hearing. More than 30 days have elapsed since that correspondence, but no response has been received. As such, the Board finds that the May 2017 hearing request in the representative's brief has been withdrawn. These matters were previously before the Board in January 2019, where they were remanded for additional development. The Board notes that there was substantial compliance with its January 2019 remand directives. However so, the Board regrettably finds that another remand is necessary prior to readjudication of the claims for entitlement to a compensable rating for service-connected left lower extremity atherosclerotic arterial occlusive disease, and TDIU prior to October 29, 2020; both of which will be addressed in the designated sections below. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As an initial matter, the Board notes that the Veteran's claim for right lower extremity atherosclerotic occlusive disease was originally adjudicated and rated as atherosclerotic occlusive disease of the bilateral lower extremities in a 2004 rating decision. Subsequently, the Veteran filed an increased rating claim in May 2011 for his bilateral condition. After all procedural elements were successfully completed, the Board remanded the Veteran's claim in January 2019 for additional development. After such development was completed, the RO issued the September 2020 rating decision that granted a separate compensable rating of 20 percent, effective January 10, 2020, for the right lower extremity, which resulted in a bifurcation of the Veteran's issue regarding his lower extremities of atherosclerotic occlusive disease. As a result, the RO has only considered the Veteran's claim since January 10, 2020. However, given that the Veteran's bilateral atherosclerotic occlusive disease, which encompasses the right lower extremity by nature of its characterization, has continued to be on appeal, the Board has recharacterized the Veteran's right lower extremity atherosclerotic occlusive disease to encompass the appeal period of prior to January 10, 2020 and thereafter. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the Veteran challenges the initial rating of a disability for which he has been granted service connection, the Board considers all evidence of severity since the effective date for the award of service connection. See generally Fenderson v. West, 12 Vet. App. 119 (1999). However, whether the issue is an initial increase or not, consideration of the appropriateness of a "staged rating" is required. See id at 126. Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. 1. Entitlement to a compensable rating prior to January 10, 2020, and exceeding 30 percent thereafter, for service-connected onychomycosis ("fungal infection"). The Veteran contends this his fungal infection warrants a compensable rating prior to January 10, 2020, and a rating exceeding 30 percent thereafter, as his symptoms are more severe. The Veteran's service-connected fungal infection is currently evaluated as noncompensable prior to January 10, 2020, and 30 percent thereafter, under DC 7899-7813. The Board notes that when hyphenated DC's are used with "99" the condition being rated is an unlisted disease, which requires rating by analogy. See 38 C.F.R. § 4.27. Under 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; of inguinal area, (jock itch), tinea cruris) is rated as disfigurement of the head, face, or neck (DC 7800), scars (DCs 7801, 7802, 7803, 7803, 7804, or 7805), or dermatitis (DC 7806), depending upon the predominant disability. The Board notes that the Veteran's fungal infection does not involve burn scars or disfigurement of the head, face or neck for consideration under DC 7800; nor, involve scars to be considered under DCs 7801, 7802, 7803, 7804, or 7805. Therefore, the Board will evaluate the Veteran's fungal infection under the predominant disability of dermatitis or eczema under DC 7806. Under DC 7806, a 10 percent rating was warranted if 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 was affected, or; if intermittent system therapy such as corticosteroids or other immunosuppressive drugs were required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating was warranted if 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas was affected, or; if 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. The highest rating of 60 percent was warranted if more than 40 percent of the entire body or more than 40 percent of exposed areas was affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs were required during the past 12-month period. See 38 C.F.R. § 4.118, DC 7806, as in effect prior to August 13, 2018. However, the Board notes that the rating criteria for evaluating skin were amended, effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018). Therefore, effective August 13, 2018, under DC 7806, a 10 percent rating is warranted if there is 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 total duration less than 6 weeks over the past 12-month period. A 30 percent rating is warranted if there is one of the following: characteristic lesions involving 20 to 40 percent of the entire body affected or 20 to 40 percent of exposed areas 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 maximum 60 percent rating is warranted if there is at least one of the following: characteristic lesions involving more than 40 percent of the entire body affected 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. 38 C.F.R. § 4.118, DC 7806. Systemic therapy means "treatment pertaining to or affecting the body as a whole," whereas topical therapy means "treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied." See Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017). VA and private treatment records during the appeal period reflect notations of an ongoing toenail fungal infection with thickened, discolored toenails, affecting both feet, with complaints of bilateral foot pain and noted use of topical cream treatment of the fungal infections. In an August 2011 lay statement, the Veteran contended that he has poor circulation to his feet, with severe infections to his toenails that result in white and yellow discoloration and detachment from nail bed. See VA 21-4138, August 2011. In August 2012, the Veteran was afforded a VA examination to assess the current severity of his fungal infection; however, the record indicates that the Veteran was unable to attend this scheduled examination due to being incarcerated at this time. In a January 2020 VA skin examination, the examiner noted the Veteran's diagnosed dermatophytosis of onychomycosis, with current symptoms of his toes hurting badly and toenails rotting off; however, the Veteran is no longer being treated for this condition. Additionally, the Veteran indicated that he has not undergone any treatment in the past 12 months, and has not used UVB intensive light therapy, PUVA or electron beam therapy. Upon examination, there were no scars present. The Veteran's fungal infection revealed skin lesions being 20 to 40 percent of the total body area, and 0 percent in the exposed area; and the condition does not affect the Veteran's ability to work. See C&P Exam, January 2020. Based on the above, the Board finds that a compensable rating prior to January 10, 2020, nor an increased rating exceeding 30 percent thereafter, is warranted. The weight of the evidence is not sufficient to meet the criteria for a compensable rating under DC 7806 prior to January 10, 2020, as the severity of the Veteran's fungal infection has shown to have manifested, at worse, to toenail/foot pain with discolored toenails, which does not result in a compensable evaluation under DC 7806. Additionally, the weight of the of the evidence is not sufficient to meet the criteria for a higher 60 percent rating under DC 7806 beginning January 10, 2020, as the severity of the Veteran's fungal infection has shown to have manifested, at worse, to dermatitis affecting 20 to 40 percent of the total body area, which is commensurate of a 30 percent evaluation under DC 7806. The Board notes that the relevant medical evidence of record during the appeal period, to include VA and private treatment records and the January 2020 VA examination, shows that the Veteran's fungal infection prior to January 10, 2020, has not affected at least 5 percent of the exposed areas, or resulted in intermittent system therapy such as corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs for a total duration of less than six weeks during the past 12-month period; nor has the Veteran's fungal infection beginning January 10, 2020, affected more than 40 percent of the entire body or exposed area, 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. Therefore, the Board finds that the preponderance of the evidence does not support the assignment of ratings higher than the currently assigned 0 percent prior to January 10, 2020, and 30 percent thereafter, in this case. The Board notes that the lay assertions of the Veteran have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran has argued that higher ratings for his fungal infection is warranted, these assertions are outweighed by more probative evidence provided by the examination of a qualified medical professional. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, his lay statements do not provide any basis upon which to assign any higher ratings. Therefore, the Board concludes, based on consideration of the medical and lay evidence, a compensable rating prior to January 10, 2020, and exceeding 30 percent thereafter, for service-connected onychomycosis ("fungal infection") is not warranted; and the claim is denied. In reaching this determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its applications. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Entitlement to a compensable rating prior to January 10, 2020, and exceeding 20 percent thereafter, for service-connected right lower extremity atherosclerotic arterial occlusive disease ("artery disease"). The Veteran contends this his right lower extremity artery disease warrants a compensable rating prior to January 10, 2020, and a rating exceeding 20 percent thereafter, as his symptoms are more severe. The Veteran's service-connected right lower extremity artery disease is currently evaluated as noncompensable prior to January 10, 2020, and 20 percent thereafter, under DC 7114. Under DC 7114, a 20 percent rating is warranted for disability manifesting as claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of 0.9 or less. A rating of 40 percent is warranted for disability manifesting as claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and; trophic changes (thin skin, absence of hair, dystrophic nails) or ankle/brachial index of 0.7 or less. A rating of 60 percent is warranted for disability manifesting as claudication on walking less than 25 yards on a level grade at 2 miles per hour, and; either persistent coldness of the extremity or ankle/brachial index of 0.5 or less. The maximum rating of 100 percent is warranted for disability manifesting as ischemic limb pain at rest, and; either deep ischemic ulcers or ankle/brachial index of 0.4 or less. 38 C.F.R. § 4.104, DC 7114. The ankle ankle/brachial index is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. Id., Note (1). These evaluations are for involvement of a single extremity. If more than one extremity is affected, each extremity is to be evaluated separately. Id., Note (3). VA and private treatment records during the appeal period reflect complaints and treatment for right leg pain and swelling that is worse with ambulation or standing, and is consistent with neurogenic claudication. In an August 2011 lay statement, the Veteran contended that his artery disease causes severe leg cramps and numbness. See VA 21-4138, August 2011. In August 2012, the Veteran was afforded a VA examination to assess the current severity of his artery disease; however, the record indicates that the Veteran was unable to attend this scheduled examination due to being incarcerated at this time. In a January 2020 VA artery and veins examination, the examiner noted the Veteran's diagnosis of bilateral lower extremity arterial occlusive disease, with current symptoms of shortness of breath. Upon examination, the Veteran was diagnosed with peripheral vascular disease (PVD) that results in right lower extremity claudication on walking more than 100 yards and diminished peripheral pulses. The right lower peripheral pulses revealed a femoral pulse of 1+, popliteal pulse of 1+, dorsalis pedis pulse of 1+ and posterior tibial pulse of 1+. The Veteran also has deep vein thrombosis (DVT) related to his PVD. The examiner noted that an ankle/brachial test was unable to be performed due to contraindication that the Veteran is being treated for post-DVT (noting that the American Heart Association guidelines recommend avoiding compression of the extremity with known or suspected DVT due to concern for breaking and embolizing a thrombus). As noted in the examination report, the Veteran regularly uses a walker for assistance in locomotion. See C&P Exam, January 2020. In a February 2021 VA artery and veins examination, the examiner noted the Veteran's diagnosis of bilateral peripheral vascular occlusive disease. Upon examination, the Veteran has post-phlebitic syndrome in the right leg, with symptoms of aching and fatigue after prolonged standing and walking. The Veteran has been diagnosed with PVD that results in right lower extremity diminished peripheral pulses and trophic changes. The right lower peripheral pulses revealed an absence of the femoral pulse, popliteal pulse, dorsalis pedis pulse, and posterior tibial pulse. An ankle/brachial index test was not performed. The examiner noted that the Veteran constantly uses a wheelchair for assistance in locomotion. See C&P Exam, January 2020. Based on the above, the Board finds that a compensable rating prior to January 10, 2020, nor an increased rating exceeding 20 percent thereafter, is warranted. The weight of the evidence is not sufficient to meet the criteria for a compensable rating under DC 7114 prior to January 10, 2020, as the severity of the Veteran's right lower extremity artery disease has shown to have manifested, at worse, to right leg pain and swelling with walking and standing, which does not result in a compensable evaluation under DC 7114. Additionally, the weight of the evidence is not sufficient to meet the criteria for a higher 40 percent rating under DC 7114 beginning January 10, 2020, as the severity of the Veteran's right lower extremity artery disease has shown to have manifested, at worse, to claudication on walking more than 100 yards and diminished peripheral pulses, which is commensurate of a 20 percent evaluation under DC 7114. The Board notes that the relevant medical evidence of record during the appeal period, to include VA and private treatment records and the January 2020 and February 2021 VA examinations, shows that the Veteran's right lower extremity artery disease prior to January 10, 2020 has not resulted in claudication on walking more than 100 yards and diminished peripheral pulses or ankle/brachial index of 0.9 or less; nor has the Veteran's right lower extremity artery disease beginning January 10, 2020 resulted in claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and trophic changes or ankle/brachial index of 0.7 or less. While the Board acknowledges evidence of trophic changes in the right lower extremity during the February 2021 VA examination, a symptom that is associated with a higher 40 percent rating under DC 7114, the Board notes that this symptom is not accompanied by claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, which must also be present in order to grant the increased 40 percent rating. Therefore, the Board finds that the preponderance of the evidence does not support the assignment of ratings higher than the currently assigned 0 percent prior to January 10, 2020, and 20 percent thereafter, in this case. The Board notes that the lay assertions of the Veteran have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran has argued that higher ratings for his right lower extremity artery disease is warranted, these assertions are outweighed by more probative evidence provided by the examination of a qualified medical professional. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, his lay statements do not provide any basis upon which to assign any higher ratings. Therefore, the Board concludes, based on consideration of the medical and lay evidence, a compensable rating prior to January 10, 2020, and exceeding 20 percent thereafter, for service-connected right lower extremity atherosclerotic arterial occlusive disease ("artery disease") is not warranted; and the claim is denied. In reaching this determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its applications. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND 1. Entitlement to a compensable rating for service-connected left lower extremity atherosclerotic arterial occlusive disease is remanded. The Board notes that the Veteran's claim was originally adjudicated and rated as atherosclerotic occlusive disease of the bilateral lower extremities in a 2004 rating decision. Subsequently, the Veteran filed an increased rating claim in May 2011 for his bilateral condition. After all procedural elements were successfully completed, the Board remanded the Veteran's claim in January 2019 for additional development. After such development was completed, the RO issued the September 2020 rating decision that granted a separate compensable rating for the right lower extremity, which resulted in a bifurcation of the Veteran's issue regarding his lower extremities of atherosclerotic occlusive disease. Subsequently, a Supplemental Statement of the Case (SSOC) was issued in January 2021. However, upon review, the Board notes that the SSOC only addressed the claim for right lower extremity, omitting any discussion regarding the left lower extremity. Therefore, the Board finds that due to the Veteran's claim for increase involving his atherosclerotic occlusive disease of the bilateral lower extremities, the claim regarding the left lower extremity is still on appeal, and thus, this issue should have been addressed in the January 2021 SSOC. 38 U.S.C. § 7105; 38 C.F.R. § 19.31. As such, the Board concludes that a remand is necessary for issuance of a SSOC regarding the issue of a compensable rating for service-connected left lower extremity atherosclerotic arterial occlusive disease. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to October 29, 2020, is remanded. As an initial matter, the Board notes that in the January 2021 rating decision, the Veteran was assigned a 100 percent disability rating for his service-connected coronary artery disease, effective October 29, 2020; as well as, special monthly compensation (SMC) based on his coronary artery disease, effective October 29, 2020. Therefore, the issue of entitlement to TDIU from October 29, 2020 is moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 1114(s); Holland v. Brown, 6 Vet. App. 443, 446 (1994); Bradley v. Peake, 22 Vet. App. 280 (2008). As such, the issue before the Board is entitlement to TDIU for the period prior to October 29, 2020. The Board notes that as development of the Veteran's disability claim before the Board may have an impact on the Veteran's TDIU claim, the Board finds these issues to be inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the Board will defer adjudication of the inextricably intertwined TDIU claim at this time. The matters are REMANDED for the following action: 1. Issue a SSOC considering all the evidence of record and adjudicate the issue of entitlement to a compensable rating for service-connected left lower extremity atherosclerotic arterial occlusive disease. 2. Thereafter, the AOJ must undertake any development necessary, and readjudicate the Veteran's claim for a TDIU prior to October 29, 2020. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Hodges, Associate 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.