BVA9507463 DOCKET NO. 92-08 034 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to an increased rating for epidermophytosis of the hands and feet bilaterally with cellulitis, currently rated as 30 percent disabling. 2. Entitlement to an increased rating for phlebitis of the left leg, currently rated as 10 percent disabling. 3. Entitlement to an increased rating for phlebitis of the right leg, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Associate Counsel INTRODUCTION The veteran served on active duty from September 1943 to November 1945. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse rating action by the Togus, Maine, Regional Office (hereinafter RO). The development requested in the August 1993 and July 1994 remands has been substantially accomplished and this case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL It is essentially contended that because of recent hospitalizations for treatment of the veteran's cellulitis, manifested by symptoms such as intense erythema, blistering and peeling and requiring "chronic" antibiotic medication, the combined evaluation for the veteran's service connected lower extremity disabilities does not adequately reflect the severity of these disabilities. The veteran's representative contends that if the criteria for an increased evaluation under the VA Schedule for Rating Disabilities are not met, the veteran should be afforded an increased rating under the provisions of 38 C.F.R. § 3.321. 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 the preponderance of the evidence is against the veteran's claims. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Neither ulceration nor extensive exfoliation or crusting associated with the veteran's cellulitis or epidermophytosis is shown. 3. Exceptionally repugnant scarring or systemic or nervous manifestations associated with the veteran's cellulitis or epidermophytosis is not shown. 4. Persistent swelling of the right or left leg associated with phlebitis, increased on standing or walking for 1 or 2 hours, is not shown. 5. Neither moderate discoloration, pigmentation nor cyanosis associated with phlebitis of either leg is shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for bilateral epidermophytosis with cellulitis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) (hereinafter DC) 7806, 7813 (1994). 2. The criteria for a disability rating in excess of 10 percent for phlebitis of the left leg are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.104, DC 7120, 7121 (1994). 3. The criteria for a disability rating in excess of 10 percent for phlebitis of the right leg are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.104, DC 7120, 7121 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran has presented sufficient evidence to conclude that his claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled. In this regard, the Board notes that as requested by the Board in its July 1994 remand, additional private outpatient treatment records, dated from January 1993 to August 1994, have been obtained, and there is no indication that there are other records available that would be pertinent to the veteran's appeal. In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: The veteran prevails in either event. However, if the weight of the evidence is against the veteran's claim, the claim must be denied. 38 U.S.C.A. § 5107(a); 38 C.F.R. 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The following is a summary of the relevant history concerning the veteran's service-connected lower leg disabilities. An August 1952 rating decision granted service connection for epidermophytosis of both hands and feet and assigned a 10 percent disability rating for this disease entity. Separate 10 percent ratings were also assigned for phlebitis with varicose veins on the right and left legs. This decision was based on large part on a statement submitted by a private physician who reported treating the veteran shortly after service for severe epidermophytosis of the hands and feet. This physician opined that the lesions probably never would be healed. The existence of this condition was confirmed by VA inpatient treatment provided in June and July 1951 and a July 1952 examination, which showed swelling, edema, papules, vesicles and scaling. The veteran repeatedly contended at that time that this condition was related to "jungle rot" he contracted while serving in the Pacific during World War II. A February 1955 rating decision reduced each disability rating for phlebitis with varicose veins to noncompensable evaluations. This decision was in part based on reports from VA hospitalization begun in December 1954 that at the time of discharge listed the phlebitis in the left leg as "treated - recovered" and reported no signs or symptoms of phlebitis in the right leg. However, a June 1955 rating decision restored the 10 percent evaluation for phlebitis of the left leg after a June 1955 VA outpatient treatment visit resulted in a diagnosis of phlebitis in the left leg. This rating was again reduced to a noncompensable evaluation in September 1957 after an August 1957 VA examination was negative for phlebitis or varicose veins. The veteran was admitted to a VA hospital in March 1968 at which time cellulitis and lymphangitis of the left foot were treated with hot soaks and aspirin. No further clinical evidence relevant to the veteran's appeal is of record until a report from in-patient treatment provided at a private medical facility for cellulitis in the veteran's left leg in July 1990. The veteran reported to this facility with a two day history of progressive redness and tenderness in the left calf and foot. Upon physical examination, a florid, erythematous eruption was noted in the left pretibial region on the dorsum of the left foot. Marked tenderness and increased heat was noted in the medial aspect of the left foot and there was "1+" local edema in the area of the inflammation. A left inguinal lymph node was also noted. These conditions were treated with medication to which the veteran responded well. An August 1990 VA examination showed spider varicosities on the medial calves and lower medial portions of both legs. More prominent, slightly ropy, several millimeter wide varicosities were also noted on both medial calves. The left ankle was diffusely "puffy." There was no edema in the right ankle. The veteran underwent further treatment at a private medical facility in March 1991, at which time an area of erythema was noted on the anteromedial aspect of the right distal leg. There was increased heat in this area but no blister formation was noted and there was no pitting edema. The assessment included probable early cellulitis of the right leg. Again, the veteran responded well to the hospitalization as it was noted that less and less erythema of the right leg was shown each day of his hospitalization. The veteran was admitted to a private medical facility in July 1991 after he woke up one morning with severe discomfort in his left lower leg. An examination of the left lower extremity showed a macular ill-defined rash from the ankle to the upper calf involving the entire portion of the distal leg. The rash was not sensitive to touch and no soft tissue swelling or warming of the skin was noted. The veteran testified at an August 1991 hearing that he had cramping in his legs about every day that went away when he got up to walk. He also testified that he had no varicosities larger than those noted on the August 1990 VA examination and stated that there were no eruptions or discolorations associated with the varicosities. The veteran indicated he wore elastic stockings on occasions but that the varicosities had not changed much over the years. In October 1991, the same VA physician who examined the veteran in August 1990 concluded that the veteran's recurring cellulitis was directly related to his dermatophytosis and varicose veins. The physical examination at that time showed diffuse superficial varicosities a few millimeters wide, variably tortuous and up to several inches long diffusely over both lower calves. There was trace edema of both feet and ankles and there was evidence of "pale heaped up skin" between the toes with dry fissures. Also noted was mild flaking of the plantar surfaces of the toes and medial calluses on the balls of each foot. As a result of this examination, the RO increased the rating for epidermophytosis to 30 percent disabling and listed cellulitis as part of this service connected disability. In September 1993, the veteran was again admitted to a private medical facility for treatment for a red painful hot area on the medial aspect of the left calf. Skin cultures were positive for Group G Streptococcus. Also noted was lymphangiectatic streaking in the posterior-medial aspect of the distal left thigh and on the dorsum of the left foot. Treatment included modified bed rest with the left leg elevated, antibiotics, anti-fungal cream and intermittent warm moist compresses. Within a few days however, the cellulitis was definitely fading and the area of tenderness was rapidly resolved. At the time of discharge from this facility there was only very minimal dull mottled erythema noted with minimal if any residual tenderness. At no time during the hospitalization was any deep calf tenderness, popliteal cord involvement, fluctuance or exudate noted. The veteran was again hospitalized in October 1993 for treatment for a recurrence of cellulitis. Noted at that time was an area of mottling on the medial aspect of the distal left calf and an area of erythema without streaking on the lateral aspect of the left calf. Increased warmth of the left lower extremity was noted. A November 1993 VA examination showed evidence of small varicosities of the medial calves and ankles, worse on the left than the right. Also noted was mild edema of the ankles and evidence of irritation between the toes, particularly of the left foot. There was a fresh fissure with fresh blood in the area between the third and fourth toes of the left foot. The remaining toes were less severely affected. The pulses were diminished in the feet. There was no evidence of active infection or scarring at that time. The impression was "[v]aricose veins with chronic mild stasis and edema of the lower extremities." The examiner stated that this condition "undoubtedly" was contributing to the recurrent episodes of cellulitis. (While the Board has considered the request by the veteran's representative that he be scheduled for a VA examination, another examination is not necessary as the clinical evidence from this examination is sufficient to evaluate the veteran's claims.) Based on the most recent clinical evidence of record highlighted above, the RO increased the disability rating for phlebitis on each leg to 10 percent in a December 1993 rating decision. The clinical evidence obtained pursuant to the Board's July 1994 remand consists of reports from outpatient treatment provided by a private physician from January 1993 to August 1994. It was indicated in records dated in November and December 1993, and January, May and August 1994 that the veteran's cellulitis had not recurred due to his taking the medication Bicillin monthly. In addition, none of these reports referred to complaints or findings which could be attributed to phlebitis in either leg. I. Epidermophytosis with cellulitis 38 C.F.R. § 4.118, DC 7813, and an accompanying note provides that dermatophytosis is to be rated as for eczema. (As the clinical evidence indicates there is a direct relationship between the cellulitis and dermatophytosis, the Board will, as did the RO, include any disability caused by cellulitis in determining the proper rating for the veteran's dermatophytosis.) According to 38 C.F.R. § 4.118, DC 7806, eczema manifested by constant exudation or itching, extensive lesions or marked disfigurement warrants a 30 percent disability rating. Eczema manifested by ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant lesions warrants a 50 percent disability rating under DC 7806. Given the most recent clinical evidence of the veteran's skin disorder, and in light of the clinical history involving this disorder highlighted above, the Board concludes that the 30 percent evaluation currently assigned for this disability is an adequate reflection of the degree of industrial impairment associated with this disability. Ulceration or exceptionally repugnant lesions have not been shown, and while there has been some clinical evidence of exfoliation or crusting, this could not be characterized as extensive to the extent that a rating in excess of 30 percent is warranted. In this regard, the crusting largely had been limited to the areas of the toes, and there is no evidence that it had spread to cover a more extensive area. Similarly, the descriptions of the lesions associated with cellulitis have not been described in terms that would lead compel a conclusion that they were "exceptionally repugnant", nor did the veteran testify to that effect at the August 1991 hearing. The Board notes also that the veteran's skin condition always responded well to the treatment and medication provided during his hospitalizations according to the evidence of record. Moreover, the most recent VA examination conducted in November 1993 showed no evidence of active infection or scarring, and the recently obtained private treatment reports dated through August 1994 showed no recurrence of cellulitis, especially while taking medication to assist in the control of the pathology. Thus, the Board finds the weight of the "negative" evidence to be greater than the weight of the "positive" evidence as to the claim entitlement to a schedular evaluation in excess of 30 percent. Under Gilbert, 1 Vet. App. at 49, this claim must therefore be denied. As requested by the veteran's representative, the Board has considered application of 38 C.F.R. § 3.321(b)(1), which provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disabilities, an extraschedular evaluation will be assigned. However, while the veteran has had several hospitalizations in the past for treatment of cellulitis, the evidence describing the veteran's current disability, which is the most relevant evidence to consider in determining the appropriate rating under the holding in Francisco v. Brown, 7 Vet.App. 55 (1994), as represented by the recent private clinical reports showing no recurrence of cellulitis, indicates that his skin disorder is not so severe as to warrant the application of 38 C.F.R. § 3.321(b)(1) to this case. II. Phlebitis Phlebitis manifested by persistent moderate swelling of the leg not markedly increased on standing or walking warrants a 10 percent disability rating. Phlebitis manifested by persistent swelling of the leg or thigh, increased on standing or walking one or two hours, readily relieved by recumbency with moderate discoloration, pigmentation and cyanosis warrants a 30 percent disability rating. 38 C.F.R. § 4.104, DC 7121. Applying the criteria for a 30 percent rating for phlebitis enumerated in DC 7121, the Board concludes that the veteran is not entitled to such a rating for phlebitis in either leg. As support for this conclusion, the Board first notes that the veteran testified at his hearing that rather than increasing on standing or walking, the cramping in his legs actually goes away when he gets up and walks. He also testified that his varicosities were no larger than were reported at the August 1990 VA examination and he stated that there were no eruptions or discolorations associated with the varicosities. As for the clinical evidence, the most recent VA examination conducted in November 1993 showed only "small" varicosities and "mild" edema of the ankles, and no discoloration, pigmentation, or cyanosis were reported. In addition, the private clinical records dated from January 1993 to August 1994 recently obtained showed no findings or symptoms which could be attributed to phlebitis. As the veteran's varicosities have been described as being only a few millimeters in diameter, the veteran would also not be entitled to a "single" 20 or "bilateral" 30 percent rating for "Moderately Severe" varicose veins under 38 C.F.R. § 4.104, DC 7120. Moreover, as neither frequent hospitalization nor marked interference with employment due solely to phlebitis has been demonstrated, an extraschedular evaluation for that disability under the provisions of 38 C.F.R. § 3.321(b)(1) is not warranted. ORDER Entitlement to a rating in excess of 30 percent for epidermophytosis of the hands and feet bilaterally with cellulitis is denied. Entitlement to a rating in excess of 10 percent for phlebitis of the left leg is denied. Entitlement to a rating in excess of 10 percent for phlebitis of the right leg is denied. MICHAEL D. LYON 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.