Citation Nr: 0005182 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-14 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to a compensable evaluation for a right temple scar. 2. Entitlement to a compensable evaluation for hemorrhoids. 3. Entitlement to an evaluation in excess of 20 percent for residuals of a cold injury of the right lower extremity. 4. Entitlement to an evaluation in excess of 20 percent for residuals of a cold injury of the left lower extremity. 5. Entitlement to an evaluation in excess of 10 percent for a right knee disability. 6. Entitlement to a compensable evaluation syphilis. 7. Entitlement to a total rating based on individual unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Richard A. LaPointe, Attorney at Law ATTORNEY FOR THE BOARD K. S. Hughes, Associate Counsel INTRODUCTION The veteran served on active duty from March 1943 to November 1945. He was a prisoner of war (POW) of the German government from December 17, 1944, to April 29, 1945. The veteran subsequently had active service from February 1946 to February 1949. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. For reasons which will become apparent, the issues of entitlement to an evaluation in excess of 20 percent for cold injury, right lower extremity; an evaluation in excess of 20 percent for cold injury, left lower extremity; an evaluation in excess of 10 percent for a right knee disorder, a compensable evaluation for syphilis; and a total rating based on individual unemployability due to service-connected disability will be the subject of the remand portion of this decision. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's scar of the right temple is not tender or painful, is not poorly nourished or ulcerated, and is not disfiguring. 3. The medical evidence on file shows that the veteran's hemorrhoids are not large or thrombic, nor irreducible with excessive redundant tissue evidencing frequent recurrences. While the veteran has reported some burning in the rectal region with constipation, these symptoms result in no more than mild to moderate impairment. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for a scar at the right temple have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. 4.118, Diagnostic Code 7800 (1999). 2. The criteria for a compensable evaluation for hemorrhoids have not been met. 38 U.S.C.A. §§ 1155, 5107(a); 38 C.F.R. §§ 4.114., Diagnostic Code 7336 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran's increased rating claims are found to be well-grounded under 38 U.S.C.A. § 5107(a). That is, he has presented claims which are plausible. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In general, an allegation of increased disability is sufficient to establish a well-grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is satisfied that all relevant facts with respect to the issues of entitlement to compensable evaluations for a right temple scar and hemorrhoids have been properly developed and that no further assistance is required in order to satisfy the duty to assist mandated by 38 U.S.C.A. § 5107(a) with respect to these claims. Factual Background By a January 1951 rating decision, the veteran was granted service connection for disorders that included scar at the right temple, residual of laceration, and external hemorrhoids. This determination was based on the veteran's service medical records and an August 1950 report of VA examination. The veteran's right temple scar and hemorrhoids were assigned zero percent schedular evaluations and these ratings have been confirmed and continued to the present. The record reflects that the veteran's current request for increased evaluations was received in December 1997. A February 1998 report of VA general medical examination notes the veteran's history of hemorrhoids and his complaints of burning in the rectal region with constipation. It is noted that he had not had any hemorrhoid symptoms during the past three or four years. The impression included history of hemorrhoids, no remarkable symptoms during the past three to four years, no hemorrhoids noted on physical examination. Additionally, a February 1998 report of VA orthopedic examination notes a well-healed, transverse, 6 centimeter, asymptomatic scar of the right forehead along the hairline. The report includes the examiner's comment that the scar is nontender and completely asymptomatic. The diagnoses include asymptomatic scar over the right parietotemporal area of the scalp. Criteria Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). With regard to the veteran's request for an increased schedular evaluation, the Board will only consider the factors as enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Analysis Scar: Scars, which are superficial, poorly nourished with repeated ulceration are rated as 10 percent disabling. Superficial scars which are tender and painful on objective examination are rated as 10 percent disabling. 38 C.F.R. 4.118, Diagnostic Code 7803, 7804. The February 1998 report of VA examination reflects that the veteran's scar of the right forehead is well-healed, nontender, and completely asymptomatic. There is no evidence of poor nourishment or ulceration. Thus, a compensable evaluation based on , 38 C.F.R. § 4.118, Diagnostic Code 7803 or 7804 is not warranted. Additionally, the rating schedule provides that severe disfiguring scars of the head, face or neck, especially those which produce a marked and unsightly deformity of the eyelids, lips or auricles are rated as 30 percent disabling. Moderately disfiguring scars of the head, face or neck are rated as 10 percent disabling. Slightly disfiguring scars are assigned a noncompensable rating. 38 C.F.R. 4.118, Diagnostic Code 7800. The Board notes that the veteran's service-connected scar is located on his forehead. A compensable rating is assigned if a scar on the head results in moderate disfigurement. 38 C.F.R. 4.118, Diagnostic Code 7800. The VA examiner in February 1998 commented that the scar was at the hairline and it was well-healed. There is no evidence of record and the veteran does not claim that the scar is disfiguring. Thus, a compensable rating under Diagnostic Code 7800 is not appropriate. In the absence of evidence which demonstrates that the veteran's scar of the right forehead is either disfiguring, poorly nourished with repeated ulceration, or tender and painful on objective examination, a compensable rating is not warranted. Hemorrhoids: Hemorrhoids are rated under the schedular criteria provided at 38 C.F.R. § 4.114, Diagnostic Code 7336. A noncompensable evaluation is provided where either external or internal hemorrhoids are mild or moderate. A 10 percent evaluation is warranted for large or thrombotic, irreducible hemorrhoids with excessive redundant tissue, evidencing frequent recurrences. A 20 percent evaluation is warranted when there is persistent bleeding and with secondary anemia or with fissures. 38 C.F.R. § 4.114, Diagnostic Code 7336. There is no evidence of record demonstrating that the veteran currently has hemorrhoids which are large or thrombotic or are irreducible with excessive redundant tissue, nor is there evidence of record demonstrating that the veteran has persistent bleeding with secondary fissures or anemia. The veteran does report complaints of burning in the rectal region with constipation. VA examination in February 1998 noted the veteran's history of hemorrhoids; however, it was also noted that he had not had any hemorrhoid symptoms during the past three or four years and no hemorrhoids were noted on physical examination. While appropriate consideration is given to the veteran's subjective complaints, the Board places the greater probative value on the objective findings from the February 1998 VA examination. Accordingly, the Board finds that the preponderance of the evidence is against a compensable evaluation for hemorrhoids, as no such pathology was noted upon the most recent VA examination. In rendering this determination, the Board has considered all pertinent aspects of 38 C.F.R. Parts 3 and 4 as required by the Court in Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The weight of the evidence is against compensable evaluations for right temple scar and hemorrhoids and does not suggest an approximate balance of positive and negative evidence as to a higher award for these disorders. Therefore, the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3. There is no evidence that the veteran's service-connected right temple scar and hemorrhoids cause marked interference with employment or frequent periods of hospitalization. Therefore, the Board finds that referral for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1999) is not warranted. ORDER A compensable rating for a scar of the parietal region is denied. A compensable evaluation for hemorrhoids is denied. REMAND Right Knee: The evidence of record includes a July 1982 report of X-ray study which demonstrated marked narrowing of the medial joint space compartment compatible with chondromalacia. It was also noted that the bony architecture was normal without evidence of degenerative or other arthritic changes. However, the examination report included a diagnosis of history of right knee strain currently with mild effusion and probable arthritis. The Board notes that the most recent medical evidence of record, a February 1998 report of VA orthopedic examination, includes a diagnosis of chondromalacia, subpatellar, with patellofemoral syndrome of the right knee, symptomatic. There is no indication that the veteran was afforded an X-ray study of his right knee in connection with this examination. The General Counsel for VA, in a precedent opinion dated July 1, 1997, (VAOPGCPREC 23-97), held that a claimant who has arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003 and 5257. General Counsel stated that when a knee disorder is already rated under 38 C.F.R. § 4.71a, Diagnostic Code 5257, the veteran must also have limitation of motion which at least meets the criteria for a zero-percent rating under Diagnostic Code 5260 (flexion limited to 60 degrees or less) or 5261 (extension limited to 5 degrees or more) in order to obtain a separate rating for arthritis. General Counsel subsequently held in VAOPGCPREC 9- 98 that a separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59; see also Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Where additional disability is shown, a veteran rated under 5257 can also be compensated under 5003 and vice versa. Thus, if the veteran does have arthritis in his right knee, he might be entitled to a separate rating pursuant to these precedent opinions. Accordingly, the Board is of the opinion that the medical evidence on file may not accurately reflect the current nature and severity of the veteran's service-connected right knee disorder. Therefore, the Board finds that a contemporaneous and comprehensive examination of the veteran's right knee is necessary for a full and fair adjudication of this appeal. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Cold Injury: With respect to the veteran's claims of entitlement to evaluations in excess of 20 percent for his service-connected cold injuries of the lower extremities, the Board notes that, although the last VA examination was conducted in February 1998, it did not make findings that correlate with the criteria in the VA schedule for rating disabilities pertinent to the veteran's residuals of cold injuries of the lower extremities. The revised criteria for rating cold injury residuals which became effective August 13, 1998, contemplate such residuals as arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, and X-ray abnormalities, such as osteoarthritis. The February 1998 examination resulted in a diagnosis of cold injury by history, both feet, with only residual of being sensitive to exposure to cold weather. The examination did not discuss whether or not arthralgia or other pain was present or the impact of such symptoms on the veteran's ability to function. Thus, these issues must be remanded for a thorough and contemporaneous medical examination which is consistent with the new rating criteria for the evaluation of cold injury residuals. See Massey v. Brown, 7 Vet. App. 204 (1994) (requiring the Board to discuss the specific factors relating to the rating criteria). Syphilis: The February 1998 report of VA general medical examination notes the veteran's history of syphilis during military service as well as history of treatment with penicillin on three prior occasions. This examination report further reflects that a serological test for syphilis was to be repeated in connection with this examination. However, inasmuch as results of such testing are not contained in the claims file, they are not available for review. Total Rating Based on Individual Unemployability: With regard to the veteran's claim for a total rating based on individual unemployability, the Board finds it appropriate to forego adjudication of this issue while the claims for increased ratings for a right knee disorder; residuals of a cold injury of the lower extremities, left and right; and syphilis are being developed. The claims of entitlement to increased ratings are inextricably intertwined with the claim for a total rating based on individual unemployability because adjudication of the increased rating claims may affect the merits and outcome of an adjudication of the total rating issue. See Parker v. Brown, 7 Vet. App. 116 (1994); Babchak v. Principi, 3 Vet. App. 466 (1992); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). Accordingly, the case is REMANDED to the RO for the following action: 1. The RO should request that the veteran provide the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his right knee, cold injury to the lower extremities, and syphilis from December 1997 forward. After obtaining the appropriate releases from the appellant where necessary, the health care providers should be contacted and requested to provide all treatment records in their possession pertaining to the appellant. If these records are unavailable or are duplicates of those already on file, that fact should be annotated in the claims folder. Any available records should be associated with the claims folder. 2. The RO should obtain a copy of the serological test for syphilis referenced on the February 1998 report of VA examination. 3. In the event that the serological test for syphilis referenced on the February 1998 report of VA examination is unavailable, the veteran should be scheduled to undergo such testing and, if necessary, VA examination for syphilis. The claims folder should be made available to the examiner for review prior to the examination. All indicated studies should be performed and a complete rationale for any opinion offered should be provided. 4. The veteran should be afforded an examination by an appropriately qualified individual to determine the current nature and severity of his right knee disorder. The claims folder should be made available to the examiner for review prior to the examination. The physician must express an opinion as to whether or not the veteran has arthritis in his right knee. All indicated studies should be performed and a complete rationale for any opinion offered should be provided. 5. The veteran should also be afforded a VA medical examination by an appropriately qualified individual to determine the nature and severity of his service-connected residuals of cold injury of the lower extremities, left and right. The claims folder should be made available to the examiner for review prior to the examination. All necessary tests and studies should be conducted, to include X-ray examination of the feet, and all findings should be reported in detail. The examiner should be requested to examine each lower extremity separately and comment with respect to each foot on the presence or absence of arthralgia or other pain, numbness, cold sensitivity, tissue loss, nail abnormalities, color changes, locally-impaired sensation, hyperhidrosis, or X-ray abnormalities such as osteoporosis, subarticular punched-out lesions, or osteoarthritis of each extremity. To the extent possible, the examiner should distinguish between all foot symptomatology which is a residual of the in-service frostbite and that which is attributable to other causes. 6. Thereafter, the RO should readjudicate the issues which are the subject of this remand. If the determinations remain adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case. After the veteran and his representative have been given the opportunity to respond, the case should be returned to the Board, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Gary L. Gick Member, Board of Veterans' Appeals