Citation Nr: 0004447 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 98-14 751 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for gout of the right ankle, right foot, and right toes, secondary to service- connected residuals of a shell fragment wound to the right knee, Muscle Group XIII, with retained foreign body. 2. Entitlement to service connection for residuals of skin cancer. 3. Entitlement to service connection for a bilateral hearing loss. 4. Entitlement to service connection for a dental condition, to include weak gums and teeth, and frequent dental infections. 5. Entitlement to service connection for a cervical spine condition, secondary to service-connected residuals of a shell fragment wound to the right knee, Muscle Group XIII, with retained foreign body. 6. Entitlement to an increased rating for service-connected residuals of a shell fragment wound to the right knee, Muscle Group XIII, with retained foreign body, currently rated as 30 percent disabling. 7. Entitlement to an increased rating for service-connected arthritis of the right knee, currently rated as 10 percent disabling. 8. Entitlement to an increased rating for service-connected fungus infection of the groin, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William D. Teveri, Associate Counsel INTRODUCTION The veteran served on active duty from February 1943 to September 1945. This appeal arises from May 1998 and June 1998 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The issues of entitlement to service connection for residuals of skin cancer, and gout of the right ankle, right foot, and right toes, secondary to service-connected residuals of a shell fragment wound to the right knee, Muscle Group XIII, with retained foreign body, will be addressed in the REMAND portion of this decision. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The claim of entitlement to service connection for a bilateral hearing loss is not supported by cognizable evidence demonstrating that the claim is plausible or capable of substantiation. 3. There is no medical or dental evidence that the veteran sustained dental trauma to any teeth or has a current dental disorder related to service, other than replaceable missing teeth or periodontal disease. 4. The claim of entitlement to service connection for a cervical spine condition, secondary to service-connected residuals of a shell fragment wound to the right knee, Muscle Group XIII, with retained foreign body, is not supported by cognizable evidence demonstrating that the claim is plausible or capable of substantiation. 5. The veteran's residuals of a shell fragment wound to the right knee, Muscle Group XIII, with retained foreign body, is manifested by pain, a retained foreign body, and an inability to walk up stairs without a cane. 6. The veteran's arthritis of the right knee is manifested by pain, an inability to walk up stairs without a cane, and limitation of motion. 7. The veteran's fungus infection of the groin is manifested by a maculopapular erythematous and somewhat brown discolored intertriginous area of the perineum, at the inner aspect of the thighs and scrotum, but without excoriations or bleeding. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for a bilateral hearing loss is not well grounded. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991). 2. The veteran's claim of entitlement to service connection for any dental condition for treatment purposes is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.381 (1998); 38 C.F.R. §§ 3.381, 4.149, 4.150, 17.161 (1999). 3. The veteran's claim for service connection for arthritis of the cervical spine, secondary to service connected residuals of a shell fragment wound to the right knee, Muscle Group XIII, with retained foreign body, is not well grounded. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991). 4. The criteria for an increased rating for residuals of a shell fragment wound to the right knee, Muscle Group XIII, with retained foreign body, currently rated as 30 percent disabling, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4-14, 4.40, 4.45, 4.56, 4.73, Diagnostic Code 5313 (1999). 5. The criteria for an increased rating for arthritis of the right knee, currently rated as 10 percent disabling, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5010-5003 (1999). 6. The criteria for an increased rating for a fungus infection of the groin, currently rated as 10 percent disabling, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Code 7813 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that, subsequent to the August 1998 supplemental statement of the case (SSOC), the veteran submitted his statements or contentions in connection with his claims, and then, by documents received in February 2000, submitted an anecdotal statement which does not pertain to his claims. There is no supplemental statement of the case (SSOC) of record indicating consideration of this evidence by the RO. See 38 C.F.R. § 19.31 (1999). When the Board addresses a question not considered by the RO, the Board must consider whether the claimant had notice of that issue and whether the claimant would be prejudiced by lack of such notice. See Barnett v. Brown, 8 Vet. App. 1 (1995); Curry v. Brown, 7 Vet. App. 59, 66 (1994); Bernard v. Brown, 4 Vet. App. 384, 393-395 (1993). As these statements, however, are essentially identical to those which the veteran has proffered prior to this time, and which were considered by the RO in the statement and supplemental statements of the case of record, and do not provide any new evidence or bases for consideration for the veteran's claims, the Board finds the veteran is not prejudiced by the Board's consideration of this evidence without first remanding for consideration by the RO. Thus, the Board finds a remand for RO consideration and issuance of an SSOC as to this evidence is not necessary. Id. A remand is not required in those situations where doing so would result in the imposition of unnecessary burdens on the Board without the possibility of any benefits flowing to the appellant. See Winters v. West, 12 Vet. App. 203, 207 (1999) (en banc). I. Service connection claims Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). In addition, certain chronic diseases, including organic diseases of the nervous system, may be presumed to have been incurred during service if they become manifest to a compensable degree within an applicable period after separation from active duty. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. No conditions other than those listed in § 3.309(a) can be considered chronic for purposes of presumptive service connection. 38 C.F.R. § 3.307(a). The initial question which must be answered in this case is whether the veteran has presented a well grounded claim for service connection. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded," that is, the claim must be plausible and capable of substantiation. See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of current disability (established by medical diagnosis); of incurrence or aggravation of a disease or injury in service (established by lay or medical evidence); and of a nexus between the inservice injury or disease and the current disability (established by medical evidence). See generally Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (table). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A. Bilateral hearing loss Service connection for hearing loss is circumscribed by 38 C.F.R. § 3.385 (1999), as follows: For purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory thresholds in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 hertz, is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies, 500, 1,000, 2,000, 3,000, or 4,000 are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. The veteran's service medical records contain his December 1942 entrance physical examination report, which reveals that his hearing was found to be 15/15 in each ear, or normal. An August 1945 audiogram indicates that whispered voice testing was 15/15 in each ear. That audiogram also contains a graph showing the decibel loss at the various frequencies shown thereon. The Board notes that in 1945 decibel hearing loss was measured by standards set by the American Standards Association (ASA). Currently decibel hearing loss is measured by standards set by the International Standards Institute (ISO). Thus, the ASA decibel hearing loss shown by the August 1945 audiogram must be converted to ISO standards. The Board also notes that while the August 1945 audiogram indicates the exact Hertz frequencies being tested, i.e., 512, 1024, 2048, 2896, and 4096, current audiograms have been rounded to the 500, 1,000, 2,000, 3,000, and 4,000 Hertz frequencies noted below. Thus, after conversion from ASA to ISO standards, the August 1945 audiogram reveals that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 20 30 30 LEFT 25 15 15 30 30 This is the only hearing evidence in the veteran's service medical records. Based on the evidence of record, and applying 38 C.F.R. § 3.385, the veteran clearly did not experience documented hearing loss for VA purposes in either ear during his active duty service. As the 1945 audiogram indicates that whispered voice testing was found to be 15/15 in each ear, as did the 1942 induction examination report, it does not reveal that the veteran's bilateral hearing decreased during his active duty service. However, the lack of any evidence of hearing loss disability at separation is not fatal to the veteran's claim. Laws and regulations do not require in-service complaints of or treatment for hearing loss in order to establish service connection. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The key issues are whether the veteran currently satisfies the criteria of 38 C.F.R. § 3.385, and whether there is medical evidence linking the current hearing loss disability to the veteran's period of active service. As noted by the Court: Where the regulatory threshold requirements for hearing disability are not met until several years after separation from service, the record must include evidence of exposure to disease or injury in service that would adversely affect the auditory system and post- service test results meeting the criteria of 38 C.F.R. § 3.385....For example, if the record shows (a) acoustic trauma due to significant noise exposure in service and audiometry test results reflecting an upward shift in test thresholds in service, though still not meeting the requirements for a "disability" under 38 C.F.R. § 3.385, and (b) post-service audiometry testing produces findings meeting the requirements of 38 C.F.R. § 3.385, rating authorities must consider whether there is a medically sound basis to attribute the post-service findings to the injury in service, or whether they are more properly attributable to intercurrent causes. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) (quoting from a brief of the VA Secretary). A September 1982 private audiological examination report indicated that pure tone thresholds, in decibels, (ISO standards) were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 0 5 35 X 50 LEFT 20 X 45 X 55 Speech audiometry revealed speech recognition ability of 86 percent in the right ear and of 76 percent in the left ear. The examiner indicated the veteran exhibited a mild to moderate bilateral sensorineural hearing loss. Speech discrimination was found to be good in the right ear and fair to good in the left ear. While the veteran's current bilateral hearing loss meets the regulatory threshold requirements for a bilateral hearing disability, and as he is a combat veteran entitling him to the benefits of 38 U.S.C.A. § 1154(b), i.e., his statements of noise exposure during service are accepted for fulfilling the requirement of an inservice injury, there is unfortunately no medical evidence of a nexus (medical opinion) relating his present bilateral hearing loss to his active duty service. As the Court has held, the veteran has an obligation to submit competent medical evidence of a nexus between his present bilateral hearing loss and his active duty service. Lay testimony cannot provide such medical evidence because lay persons are not competent to offer medical opinions. See Boyer v. West, 11 Vet. App. 477, 478 (1998); Wade v. West, 11 Vet. App. 302, 304-306 (1998); see also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espirutu v. Derwinski, 2 Vet. App. 492, 494 (1992). Thus, the veteran's contentions that his current bilateral hearing loss had its inception during his active duty service, or was caused by acoustic trauma during his active duty service, cannot be accepted as competent medical evidence of a nexus between his present bilateral hearing loss and his active duty service. A well grounded claim must be supported by evidence, not merely allegations. Tirpak, supra. Consequently, as a well grounded claim requires medical evidence of a nexus between an inservice injury and the current disability in order to be plausible, as noted above, and no such evidence has been submitted, the veteran's claim for service connection for a bilateral hearing loss must be denied as not well grounded. See Epps, supra. The Board recognizes that this appeal is being disposed of in a manner that differs from that used by the RO. The RO denied the veteran's service connection claim on the merits, while the Board has concluded that the claim is not well grounded. However, the Court has held that "when an RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well grounded analysis." See Meyer v. Brown, 9 Vet. App. 425, 432 (1996). The Board is aware of no circumstances in this matter that would put VA on notice that relevant evidence may exist, or could be obtained, that, if true, would make the veteran's service connection claims "plausible." See generally McKnight v. Gober, 131 F.3rd 1483, 1484-85 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69, 77-78 (1996). B. A dental condition In a January 1998 statement, the veteran indicated he was claiming service connection for a dental condition due to the fact that he was in such extreme geographic conditions during a three year period of time. The veteran's Report of Separation and Honorable Discharge indicates foreign service of one year, seven months, and 14 days. He reported that when he entered service his teeth were in excellent shape. His February 1943 induction physical examination report indicates that one upper (L6) and two lower teeth (L7, R14) had restorable caries (cavities), and four teeth (L8, L16, R8, R16) were missing. This report noted no mouth or gum abnormalities. An April 1945 dental examination report indicates that bite wing X-rays, right and left, had been taken which revealed caries in R14, R15, L7, L8, L15, pulpitis L14 (to be extracted), and heavy calculus. He reported that he has had "weak" gums, dental "infections," and "weakened" teeth, since his discharge from active duty. An April 1951 letter from the RO to the veteran informed him that service connection had been granted for outpatient dental treatment for tooth #19. The Board notes that no dental records have been submitted from 1951 to the current date. Service connection will be granted for a disease or injury of the individual teeth and investing tissues, shown by the evidence to have been incurred in or aggravated by service. As to each noncompensable service-connected dental condition, a determination will be made as to whether it is due to a combat wound or other service trauma. 38 C.F.R. § 3.381 (1999). The significance of a finding that a dental condition is due to in-service trauma is that the veteran may be authorized to receive any VA dental care indicated as reasonably necessary for the correction of such service- connected noncompensable condition or disability. 38 C.F.R. § 17.161(c) (formerly § 17.123(c)), commonly referred to as Class II(a) eligibility. For the purposes of determining whether a veteran has Class II(a) eligibility for dental care under 38 C.F.R. § 17.161(c), the term "service trauma" does not include the intended effects of treatment provided during the veteran's military service, including tooth extraction. See VAOPGCPREC 5-97, 62 Fed. Reg. 15566 (1997). Further, applicable regulation provides that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, periodontal disease (pyorrhea), and Vincent's stomatitis are not disabling conditions, and may be considered service connected solely for the purpose of determining entitlement to dental examination or outpatient dental treatment. 38 C.F.R. § 4.149. As noted above, however, no dental evidence has been presented to show eligibility under any category of 38 U.S.C.A. § 1712 and 38 C.F.R. § 17.161. See VAOPGCPREC 5-97. It is neither claimed nor shown that the veteran meets any of the other dental treatment eligibility categories set forth in 38 U.S.C.A. § 1712 and 38 C.F.R. § 17.161. As with any claim for service connection, a claim for service connection for dental treatment must be well grounded. A well grounded claim for service connection for dental treatment requires competent evidence of a current disability which meets the criteria specified in one of the clauses of 38 U.S.C.A. § 1712(b)(1)(A)-(H), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical/dental evidence). See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In order to be entitled to outpatient dental treatment, a veteran must meet the criteria specified in one of the clauses of 38 U.S.C.A. § 1712(b)(1)(A)-(H). Woodson v. Brown, 8 Vet. App. 352 (1995). The veteran however, has failed to present evidence which satisfies any of these three requirements. The record reveals the veteran was granted service connection in April 1951 for dental treatment for tooth #19. Thus, he has availed himself of the one time dental treatment to which he was entitled. As the criteria for a well-grounded claim are not shown, the claim must be denied. C. A cervical condition, secondary to service-connected residuals of a shell fragment wound to the right knee In addition to direct service connection for disability resulting from disease or injury incurred in or aggravated by service, a disability which is proximately due to or the result of a service connected disease or injury shall be service connected. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a). Secondary service connection may also be granted for the degree of aggravation to a non-service connected disorder which is proximately due to or the result of a service connected disorder. Allen v. Brown, 7 Vet. App. 439, 448-50 (1995). The initial question which must be answered in this case, however, is whether the appellant has presented a well grounded claim for service connection. A claim for secondary service connection must, as must all claims, be well grounded under 38 U.S.C.A. § 5107(a). See Dinsay v. Brown, 9 Vet. App. 79, 86 (1996); Jones (Wayne), supra (requiring medical evidence showing a relationship between a service-connected disability and the condition claimed to be secondarily service connected); see also Locher v. Brown, 9 Vet. App. 535, 539 (1996); Libertine v. Brown, 9 Vet. App. 521, 522 (1996). There must be evidence that the disability claimed is proximately due to or the result of the veteran's service- connected disability. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a); Wallin v. West, 11 Vet. App. 509, 512 (1998). The veteran's service medical records contain no evidence of any complaints of, or treatment for, any cervical spine problems. No medical evidence has been submitted showing that arthritis was manifested to a compensable (10 percent) degree within one year of the veteran's discharge from service. See 38 C.F.R. § 3.309(a). No medical evidence of any complaints of, or treatment for, any cervical spine problems appears of record prior to May 1998. A May 1998 X- ray report reveals a conclusion of extensive hypertrophic spurring anteriorly at C5-6 and C7, osteophyte narrowing of the intervertebral foramina bilaterally at 3-4 and 4-5, and degenerative changes of the articular pillars bilaterally. The is no medical opinion contained in this report, however, which relates this disability either with the veteran's active duty service or to his service connected residuals of a shell fragment wound to the right knee. The relationship of the veteran's service connected disability and a non-service connected disability is not susceptible to informed lay observation, and thus, for there to be credible evidence of such a relationship, medical evidence is required. See, e.g., Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Reiber v. Brown, 7 Vet. App. 513, 516 (1995); Schroeder v. Brown, 6 Vet. App. 220, 224 (1994); Proscelle, 2 Vet. App. at 633. Thus, while the veteran has contended that his cervical spine arthritis was caused by his service-connected shell fragment wound to the right knee, this cannot be the necessary competent medical evidence to well ground his claim. Accordingly, as a well grounded claim for secondary service connection must include medical evidence that the disability claimed is proximately due to or the result of the veteran's service-connected disability, and no such evidence has been submitted, the veteran's claim for service connection for arthritis of the cervical spine, as due to his service- connected residuals of a shell fragment wound to the right knee, must be denied as not well grounded. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.310(a); Wallin, supra. II. Increased rating claims Initially, the Board finds the veteran's increased rating claims well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran is found to have presented claims which are not inherently implausible, inasmuch as a mere allegation that a service-connected disability has increased in severity is sufficient to establish an increased rating claim as well grounded. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 623 (1992). Further, after examining the record, the Board is satisfied that all relevant facts have been properly developed in regard to his claims and that no further assistance to the veteran is required to comply with the duty to assist, as mandated by 38 U.S.C.A. § 5107(a). Additionally, in accordance with 38 C.F.R. §§ 4.1-4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of the veteran's service-connected disability. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence on file is inadequate for proper rating purposes. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities which is based on the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.1; Fenderson v. West, 12 Vet. App. 119, 125 (1999). The basis of disability ratings is the ability of the body as a whole, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Although the history of a disability must be considered, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Documents created in proximity to the recent claim are the most probative in determining the current extent of impairment. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). A. Residuals of a shell fragment wound to the right knee, Muscle Group XIII, with retained foreign body The veteran's service medical records reveal he was wounded by grenade fragments in February 1945, on Leyte Island, the Philippines. The wound was debrided under local anesthesia. A Final Summary indicates a very small healed wound on the anteromedial aspect and level of the upper border of the patella of the right knee was found. No soft tissue swelling or fluid was found. Full range of motion of the right knee was found, no anterior posterior or lateral instability was found, McMurray's sign was negative, no atrophy of the right thigh was found, and both knees and thighs measured the same. X-rays of the right knee revealed shell fragments, 5 millimeters in diameter, lodged adjacent to the posterior portion of the lateral tibial condyle, near the articular surface. The report indicated the foreign body did not seem to be in the joint articular area. The diagnosis was wound, shell fragment, penetrating, knee, right, entrance anterior aspect, moderate, healed on admission. The Board notes that no treatment records concerning the shell fragment wound have been submitted in connection with this claim for increase. During an April 1998 VA examination the veteran complained of instability in the right knee, and an inability to walk up stairs without a cane. Upon physical examination a 1 centimeter well healed scar was found in the medial aspect, and a 0.5 centimeter well healed scar was found on the distal aspect of the distal third of the right fibula. The right knee had crepitus on motion, with flexion of 100 degrees and extension of 0 degrees. The impression was shell fragment wound, muscle group right 13, without evidence of muscle herniation, or nerve or bone damage. Radiograph revealed a 6 x 4 x 2 millimeter metallic foreign body within the popliteal region, abutting the cortex of the posterior aspect of the proximal tibial epiphysis. Shell fragment injury involving muscle group 13 without associated injuries. Disabilities of the foot and leg are rated in accordance with 38 C.F.R. § 4.73, Diagnostic Codes (DC) 5310-5312. The veteran's injury, being of the right knee, has been evaluated under DC 5313, which addresses disabilities of Group XIII muscles, being the muscles of the posterior thigh group and Hamstring complex of 2-joint muscles: (1) biceps femoris; (2) semimembranosus; and, (3) semitendinosus. The functions affected by these muscles include extension of the hip and flexion of the knee; outward and inward rotation of flexed knee; synchronizing simultaneous flexion of the hip and knee and extension of the hip and knee. The veteran's residuals of a shell fragment wound to the right knee, Muscle Group XIII, with retained foreign body, have been rated as being a moderately severe injury under DC 5313, thereby assigning a 30 percent disability rating. A disability which has been continuously rated at or above any evaluation of disability for 20 or more years for compensation purposes under laws administered by VA will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud. 38 U.S.C.A. § 110; 38 C.F.R. § 3.951(b). The veteran's shell fragment wound disability rating has been in existence since February 15, 1949; hence, it may not be reduced. Under the rating criteria, an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56. Under DC's 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe. A slight disability of muscles is a simple wound of muscle without debridement or infection; the service department records show a superficial wound with brief treatment and return to duty; no cardinal signs or symptoms of muscle disability as defined above are evident; objective findings include minimal scar, no evidence of fascial defect, atrophy, or impaired tonus, and no impairment of function or metallic fragments retained in muscle tissue. Id. A moderate disability of muscles is a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection; service department records or other evidence shows inservice treatment for the wound; there is a record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined above, particularly a lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles; there are entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue, with some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. Id. A moderately severe disability of muscles is a through and through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring; the service department record or other evidence showing hospitalization for a prolonged period for treatment of the wound, with a record of consistent complaint of cardinal signs and symptoms of muscle disability as defined above, and, if present, evidence of inability to keep up with work requirements; objective findings would include entrance and (if present) exit scars indicating the track of missile through one or more muscle groups, indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side, with tests of strength and endurance compared with sound side demonstrating positive evidence of impairment. Id. A severe disability of muscles is a through and through or deep penetrating wound due to a high-velocity missile, or large or multiple low-velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring; the service department records or other evidence shows hospitalization for a prolonged period for treatment of wound, with a record of consistent complaints of cardinal signs and symptoms of muscle disability as defined above, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements; objective findings include ragged, depressed and adherent scars indicating wide damage to muscle groups in the missile track, with palpation showing loss of deep fascia or muscle substance, or soft flabby muscles in the wound area, with muscles swelling and hardening abnormally in contraction, and with tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicating a severe impairment of function. If present, the following are also signs of severe muscle disability: X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of a scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and induration or atrophy of an entire muscle following simple piercing by a projectile. Id. Based on the findings of the April 1998 VA examination report, as noted above, the veteran's shell fragment wound disability clearly does not exhibit the necessary shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring, as to warrant a severe injury. The service department records or other evidence do not show hospitalization for a prolonged period for treatment of wound, with a record of consistent complaints of cardinal signs and symptoms of muscle disability as defined above, worse than those shown for moderately severe muscle injuries, or evidence of an inability to keep up with work requirements. The objective findings do not include ragged, depressed and adherent scars indicating wide damage to muscle groups in the missile track, with palpation showing loss of deep fascia or muscle substance, or soft flabby muscles in the wound area, with muscles swelling and hardening abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side do not indicate a severe impairment of function. X-ray evidence does not show minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile, adhesion of a scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests, visible or measurable atrophy, adaptive contraction of an opposing group of muscles, atrophy of muscle groups not in the track of the missile, and induration or atrophy of an entire muscle following simple piercing by a projectile, has also not been shown by the medical evidence. Thus, the requirements for a severe muscle injury have not been met. Accordingly, the Board finds the preponderance of the evidence is against an increased rating for residuals of a shell fragment wound to the right knee, Muscle Group XIII, with retained foreign body. Hence, his request for an increased rating must be denied. In assigning a 30 percent rating the Board is cognizant of the veteran's complaints of pain which are noted in his claims file. Under 38 C.F.R. § 4.56, however, pain is specifically contemplated in the assignment of an evaluation for a severe wound. (The "cardinal symptoms of muscle wounds (include) ... fatigue and fatigue-pain after moderate use....") Hence, the impact of pain has already been considered, and assigning a rating for pain under 38 C.F.R. §§ 4.40 and 4.45 as interpreted in DeLuca v. Brown, 8 Vet. App. 202 (1995), would violate the principle against pyramiding. See 38 C.F.R. § 4.14. In this regard the Board notes that arthritis of the right knee, due to the shell fragment wound, has been separately rated. The issue of an increased rating for that disability is addressed below. As the objective medical evidence does not reveal ankylosis of the knee, recurrent subluxation or lateral instability, dislocated or symptomatic removed cartilage, impairment of the tibia or fibula, or genu recurvatum, DC's 5256-5259, and 5262-5263 are not for application. B. Arthritis of the right knee The veteran has been assigned a 10 percent rating for traumatic arthritis of the right knee. Arthritis, due to trauma, substantiated by X-ray findings, is rated in accordance with 38 C.F.R. § 4.71a, DC 5010, which provides that this disability is to be rated as degenerative arthritis. Degenerative arthritis is rated in accordance with DC 5003, which provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Limitation of flexion of the knee is rated in accordance with 38 C.F.R. § 4.71a, DC 5260. This code provides that flexion limited to 15 degrees warrants a 30 percent rating; flexion limited to 30 degrees warrants a 20 percent rating; flexion limited to 45 degrees warrants a 10 percent rating; and flexion limited to 60 degrees warrants a 0 percent (noncompensable) rating. The April 1998 VA examination report indicates that flexion was found to be 100 degrees. Thus, a rating in excess of 10 percent is not warranted under this code. Limitation of extension of the knee is rated in accordance with 38 C.F.R. § 4.71a, DC 5261. This code provides that extension limited to 45 degrees warrants a 50 percent rating; extension limited to 30 degrees warrants a 40 percent rating; extension limited to 20 degrees warrants a 30 percent rating; extension limited to 15 degrees warrants a 20 percent rating; extension limited to 10 degrees warrants a 10 percent rating; extension limited to 5 degrees warrants a 0 percent (noncompensable) rating. The April 1998 VA examination report indicates that extension was found to be 0 degrees. Thus, a rating in excess of 10 percent is not warranted under this code. Accordingly, the preponderance of the evidence is against an increased rating for arthritis of the right knee. C. Fungus infection of the groin The veteran's fungus infection of the groin has been rated as 10 percent disabling under 38 C.F.R. § 4.118, DC 7813. The Board notes that no medical records showing treatment for a fungus infection of the groin have been submitted in regard to the veteran's request for an increased rating for a fungus infection of the groin. During the veteran's April 1998 VA examination he reported a history of tinea cruris to the intertriginous areas of the groin, with occasional bleeding and constant itch. Upon physical examination a maculopapular erythematous and somewhat brown discolored intertriginous area of the perineum, at the inner aspect of the thighs and scrotum was found. This was noted to be without excoriations or bleeding. The impression was tinea cruris. Where the particular disability for which the veteran is service-connected is not listed in the Schedule For Rating Disabilities, it may be rated by analogy to a closely related disease in which not only the functions affected, but the anatomical location and symptomatology are closely analogous. 38 C.F.R. §§ 4.20, 4.27; see also Lendenmann v. Principi, 3 Vet. App. 345, 348 (1992); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). An analogous rating may only be assigned where the service-connected disability is not listed in the rating schedule. 38 C.F.R. § 4.27; see also Lendenmann, 3 Vet. App. at 349-50; Pernorio, 2 Vet. App. at 629. Tinea cruris is not listed in the rating schedule. The RO has rated the veteran's fungus infection under DC 7813, which rates dermatophytosis. A note to that code provides that dermatophytosis is to be rated as scars, disfigurement, etc., on the extent of constitutional symptoms, physical impairment. The objective medical evidence does not reveal scarring. The findings of the April 1998 VA examination report do not indicate disfigurement and the veteran has not contended that this disability in any way affects employment. As to the constitutional symptoms, DC 7806, which rates eczema, provides that, with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or when exceptionally repugnant, a 50 percent rating is warranted; with exudation or itching constant, extensive lesions, or marked disfigurement, a 30 percent rating is warranted; with exfoliation, exudation or itching, if involving an exposed surface or extensive area, a 10 percent rating is warranted; with slight, if any, exfoliation, exudation or itching, if on a nonexposed surface or small area, a 0 percent (noncompensable) rating is warranted. The April 1998 VA examination report indicates that excoriations or bleeding was not found. Accordingly, the preponderance of the evidence is against an increased rating for the veteran's fungus infection of the groin, and his increased rating claim must be denied. D. Conclusion In reaching these decisions the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the veteran's claims, the doctrine is not for application. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a bilateral hearing loss is denied. Service connection for a dental condition, to include weak gums and teeth, and frequent dental infections, is denied. Service connection for a cervical spine condition, secondary to service-connected residuals of a shell fragment wound to the right knee, Muscle Group XIII, with retained foreign body, is denied. An increased rating for service-connected residuals of a shell fragment wound to the right knee, Muscle Group XIII, with retained foreign body, currently rated as 30 percent disabling, is denied. An increased rating for service-connected arthritis of the right knee, currently rated as 10 percent disabling, is denied. An increased rating for service-connected fungus infection of the groin, currently rated as 10 percent disabling, is denied. REMAND Subsequent to the August 1998 SSOC the veteran submitted medical evidence pertaining to his claims for service connection for gout of the right ankle, right foot, and right toes, secondary to service-connected residuals of a shell fragment wound to the right knee, Muscle Group XIII, with retained foreign body, and for residuals of skin cancer. An SSOC will be furnished to the appellant and his or her representative, if any, when additional pertinent evidence is received after a statement of the case (SOC) or the most recent SSOC has been issued. 38 C.F.R. § 19.31. Any pertinent evidence submitted by the appellant or representative which has not been considered in an SOC or SSOC must be referred to the RO for review and preparation of an SSOC unless this procedural right is waived, in writing, by the appellant or representative or unless the Board determines that the benefit to which the evidence relates may be allowed on appeal without such referral. 38 C.F.R. § 20.1304(c). Inasmuch as additional evidence was submitted after the last SSOC, and a written waiver was not obtained, and as the Board has not determined that the benefit to which the evidence relates may be allowed on appeal without such referral, the Board determines that a remand in accordance with 38 C.F.R. §§ 19.9, 19.31, 19.37, and 20.1304(c) is warranted. Therefore, in order to give the veteran every consideration with respect to the present appeal, and to accord due process of law, it is the opinion of the Board that further development in this case is warranted. Accordingly, this case is REMANDED to the RO for the following action: The RO should consider the newly submitted evidence to determine whether the benefits requested by the veteran may be granted. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The purpose of this REMAND is to accord due process of the law. The Board does not intimate any opinion, either factual or legal, as to the ultimate disposition warranted in this case. No action is required of the veteran unless he is notified by the RO. 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). WARREN W. RICE, JR. Member, Board of Veterans' Appeals