BVA9501848 DOCKET NO. 93-07 527 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a fungal condition of the feet and groin. 2. Entitlement to an increased disability rating for bilateral hearing loss, currently evaluated as non-compensably disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and wife ATTORNEY FOR THE BOARD C.A. Skow, Associate Counsel INTRODUCTION The appellant served on active duty from December 1953 to December 1956, and from March 1958 to November 1966 which included duty in the Republic of Vietnam. The Board notes that his military occupational specialty was in light weapons infantry and that he received the Combat Infantryman Badge while he served in the Republic of Vietnam. This matter came before the Board of Veterans' Appeals (the Board) on appeal from an April 1992 rating decision of the Nashville, Tennessee, Department of Veterans Affairs Regional Office (VARO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that his current fungal disorder of the feet and groin had its onset during service. He further contends that his service-connected hearing loss is sufficiently severe to warrant a compensable disability evaluation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that entitlement to service connected for a fungal condition of the feet and groin is warranted. Furthermore, it is the decision of the Board that entitlement to an increased schedular evaluation for bilateral hearing loss has not been shown. There is, however, entitlement to a solitary 10 percent rating on account of multiple noncompensatory disabilities, subject to the regulations applicable to payment of monetary awards. FINDINGS OF FACT 1. The appellant served on active duty from December 1953 to December 1956, and from March 1958 to November 1966. 2. Hearing loss and a fungal infection of the groin are shown on service medical records. 3. The appellant's former wife observed a rash on the appellant's feet and groin shortly after his second period of service. 4. On VA examination in April 1992, persistent dermatophytosis acquired while in service was found, although the fungal condition of the groin was noted to be in its subclinical state at the time of the examination. 5. On VA audiological evaluation in April 1992, mild hearing loss was shown; the average puretone decibel (dB)loss was 50 dB in the right ear, and 40 dB in the left ear, with speech discrimination of 82 percent correct in the right ear and 96 percent correct in the left ear. 6. All the evidence, including that pertinent to service, establishes a fungal disorder of the feet related to service. 7. The appellant is service connected for multiple noncompensatory disabilities of such a character to clearly interfere with employment. CONCLUSIONS OF LAW 1. A fungal condition of the feet and groin was incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154(b), 5107(a) (1991); 38 C.F.R. § 3.303 (1993). 2. The schedular criteria for a compensable disability evaluation for bilateral hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.2, Diagnostic Code 6100 (1993). 3. The criteria for a 10 percent disability rating for multiple noncompensable service-connected disabilities of such character as clearly to interfere with normal employability are shown. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.324. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is in order. I. Background Service medical records reflect that the appellant was treated for "jock itch" in September 1958, and treated with Desenex ointment. On medical examinations conducted in October 1956, March 1958, August 1963, and November 1966, a fungal infection of the feet and groin was not shown. High frequency bilateral hearing loss was found on separation examination in November 1966. By rating action dated February 1989, the appellant was service connected for bilateral hearing loss at the non-compensable disability level. In April 1989, a VA audiological examination was conducted. By history, the appellant was noted to have been exposed to gun and artillery fire during service and to have experienced intermittent tinnitus. The average puretone decibel (dB) loss average was 54dB in the right ear and 44dB in left ear. The percent of speech discrimination was 96 percent bilaterally. The appellant was diagnosed with severe sensorineural hearing loss in the right ear and moderately severe high frequency hearing loss in the left ear as a result of noise-induced trauma. By rating action dated May 1989, VARO continued a non-compensable disability rating for the appellant's service-connected bilateral hearing loss. In August 1991, the appellant requested an increased disability evaluation for his service-connected bilateral hearing loss and service connection for a fungal condition of the feet and groin. VA outpatient treatment reports dated March 1991 to July 1991 were negative for complaints, findings, or manifestation of a fungal condition of either the feet or groin. VA outpatient treatment reports dated September 1991 to January 1992 reflect audiological and dermatological complaints. On VA outpatient treatment report dated November 1991, the appellant reported the presence of a recurrent foot and groin rash since he served in Vietnam. Clinical findings indicated that there were scales on the feet, and redness in the groin area. The appellant was diagnosed with tinea pedis. On VA outpatient treatment report dated December 1991, the appellant was noted to have complaints of ringing in the ears and bilateral hearing loss by history. On VA outpatient treatment report dated January 1992, the appellant was noted to have moderate-severe sensorineural hearing loss in both ears, and referred to prosthetics for hearing aids. There was an assessment of noise-induced sensorineural hearing loss. He was advised to wear ear protection in noisy environments. In April 1992, a VA dermatological examination was conducted. By history, the appellant developed a skin disease of the feet and inguinal area while in Vietnam, and it was reported that the inguinal skin problem recurs mostly in the summertime. Clinical findings indicated that the skin in the perianal area was not abnormal at this time. On examination of the feet, clinical findings noted diffusely red feet with fine red-colored scales which were visibly scattered over the feet, and the presence of a light scale at the peripheral margin on the lateral surface of the feet. A microscopic study revealed fungus. The appellant was diagnosed with persistent dermatophytosis acquired while in service, although the inguinal condition was noted to be in its subclinical state at the time of the examination. Also in April 1992, a VA audiological examination was conducted. The appellant complained of hearing loss and periodic ringing tinnitus bilaterally. He reported that the onset of tinnitus was 4-5 years ago, but that he believes the tinnitus to have been caused by his exposure to heavy weapons fire during service. An audiological evaluation revealed a puretone decibel loss average of 50dB in the right ear and 40dB in the left ear. The percent of speech discrimination was 82 percent correct in the right ear and 96 percentage correct in the left ear. The appellant was noted to have mild sensorineural hearing loss through 2000 hertz, mild to severe hearing loss in the higher frequencies for the right ear, and "moderate rising to mild" for the left ear. An annual audiological examination was recommended. By rating action dated April 1992, VARO denied the appellant's claims for an increased disability evaluation for bilateral hearing loss and service connection for a fungal condition of the feet and groin. In a substantive appeal to the Board dated June 1992, the appellant indicated that he believe a compensable disability evaluation for bilateral hearing loss is warranted because he wears a hearing aid. The appellant further indicated that, during service in September 1966, he was hospitalized for eight days for a fungal condition and prescribed an over-the-counter fungal medication which he has used since that time. In a sworn lay statement dated August 1992, the appellant's former wife indicated that, after he returned from Vietnam, the appellant's hearing was poor, and that a rash frequently appeared on his feet and groin which was severely bothersome to the appellant. In August 1992, a personal hearing was conducted at VARO. The appellant and his current wife testified that the appellant experiences a fungal condition of the feet and groin. The appellant indicated that this condition first began while he served in Vietnam for which he sought treatment and was hospitalized for about 1 week. Following service, the appellant stated that he self-treated his fungal condition by frequently washing the affected areas and applying over-the-counter medication. The appellant's wife, a retired nurse, indicated that she observed the fungal condition of the feet, and has assisted the appellant in treating that condition. In her opinion, the extent of the fungal condition coupled with its persistence suggests that it was acquired during the appellant's period of service. In addition, the appellant and his wife testified that the appellant has sufficiently severe hearing loss to warrant a compensable disability evaluation. In October 1992, the National Personnel Records Center indicated that it had no clinical records pertaining to the dates of hospitalization reported by the appellant in his substantive appeal or hearing testimony. II. Analysis The appellant seeks service connection for a fungal condition of the feet and groin, and a compensable disability evaluation for his service-connected bilateral hearing loss. A. Service Connection Service-connection may be granted for a disability resulting from disease or injury incurred in or aggravated while on active duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Furthermore, in the case of any disease diagnosed after discharge, service-connection may be granted when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1993). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, sufficient proof of service connection of any disease or injury alleged to have been incurred in or aggravated by such service includes satisfactory lay or other evidence of service incurrence or aggravation of injury or disease, if consistent with the circumstances, conditions, or hardships of such service, and to that end, every doubt must be resolved in the favor of the veteran. However, service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service connection in each case shall be recorded in full. 38 U.S.C.A. § 1154(b) (West 1991). In weighing the evidence of record, the Board concludes that through the application of 38 U.S.C.A. § 1154 (West 1991), and the lack of clear and convincing evidence to the contrary, entitlement to service connection for a fungal condition of the feet and groin is warranted. The Board notes that no service medical records were found indicating treatment for a fungal condition of the feet or the presence of a chronic fungal condition of either the feet or groin during service. However, in light of a sworn statement from the appellant's former wife indicating that she observed the presence of a rash on both feet and the groin shortly after the appellant returned from Vietnam, coupled with service medical records, which show treatment for a fungal infection of the groin in September 1958, and the objective medical findings on VA examination in April 1992, which clearly establish a relationship between the fungal condition and the appellant's period of service, the evidence of record weighs in favor of service connection for a fungal condition of the feet and groin. As such, the Board concludes service connected for a fungal condition of the feet and groin is warranted. B. Increased Rating The appellant seeks a compensable disability evaluation for his service-connected bilateral hearing loss. In evaluating the appellant's request for a compensable rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1993). In so doing, it is our responsibility to weigh the evidence before us. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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 (1993). All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1993). After having reviewed the relevant medical evidence in accordance with 38 C.F.R. § 4.1 (1993) and Peyton v. Derwinski, 1 Vet.App. 282 (1991), the Board is of the opinion that the appellant is appropriately rated for his service-connected bilateral hearing loss at the non-compensable disability level under diagnostic code 6100. The Schedule for Rating Disabilities provides for a non- compensable disability evaluation for mild hearing loss. 38 C.F.R. Part 4, Diagnostic Code 6100 (1993). The objective medical evidence of record supports a non-compensable disability evaluation for bilateral hearing loss. VA audiological studies performed in April 1989 and April 1992 reveal mild hearing loss under the applicable VA law and regulations. VA audiological study in April 1992 shows the numeric designation of hearing impairment in the left (better) ear is I, and in the right ear is IV. 38 C.F.R. § 4.85(a) (1993). The percentage evaluation provided by the schedule is 0. 38 C.F.R. § 4.85(b) (1993). In view of objective audiometric measurement of hearing loss, the Board finds that the schedular criteria for a compensable rating for bilateral hearing loss have not been met. 38 C.F.R. §§ 4.85, 4.87a, Diagnostic Code 6100. While the medical evidence reflects that the appellant has mild bilateral hearing loss and severe bilateral hearing loss only at higher frequencies, it does not establish the presence of a compensable disability as required for an evaluation under diagnostic codes 6101-6110 (moderate-severe impairment of hearing). The appellant's hearing impairment does not present such an unusual disability picture as to warrant application of the extraschedular provisions. 38 C.F.R. § 3.321(b) (1993). There is no evidence of marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. Also, the Board finds that the evidence in this case is not so evenly balanced as to allow application of the benefit of doubt rule for a schedular rating as required under the provisions of 38 U.S.C.A. § 5107(b) (West 1991). Accordingly, the Board concludes that a compensable disability rating for bilateral hearing loss is not warranted at this time. C. Multiple Noncompensable Service-Connected Disabilities After reviewing the claims folder, the Board notes that the appellant is service connected for bilateral hearing loss and an appendectomy at the noncompensable disability level, and, at the present time, there are no other previously rated service- connected disabilities. Under 38 C.F.R. § 3.324 (1993), whenever a veteran is suffering from two or more, separate, permanent, previously rated noncompensable service-connected disabilities of such character as clearly to interfere with normal employability, and there are no previously rated compensable service-connected disabilities, the appellant is entitled to a 10 percent rating. In view of the difficulties presented to the appellant due to the extent of his hearing loss, coupled with the appendectomy rating, the Board finds that the appellant satisfies the requirements for a solitary 10 percent rating under 38 C.F.R. § 3.324 (1993). Accordingly, the Board concludes that a solitary 10 percent disability evaluation is warranted for, multiple, previously rated noncompensable, service-connected disabilities. ORDER Service connection for a fungal condition of the feet and groin is granted. An increased rating for bilateral hearing loss is denied. A 10 percent rating for multiple, previously rated noncompensable, service-connected disabilities is granted, subject to regulatory criteria applicable to payment of monetary awards. C.P. RUSSELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.