BVA9501719 DOCKET NO. 92-12 587 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased evaluation for residuals of filariasis, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William H. Hickman, Associate Counsel INTRODUCTION The veteran had active military service from May 1941 to June 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 1991 rating action of the Department of Veterans Affairs (VA) Waco, Texas, Regional Office (RO). The claim was previously before the Board in August 1993, at which time it was remanded for further development. The case was returned to the Board in November 1994. It is now before the Board for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the filarial disorder is chronically exacerbated and, therefore, a higher evaluation is warranted. 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 evidentiary record is against the veteran's claim. 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 most recent clinical evidence of record does not demonstrate that the veteran has active filarial symptoms, or that filarial residuals have resulted in permanent deformity of one or more extremities or genitalia, or that filarial residuals have resulted in moderate lymphadenitis. 3. The veteran's filarial disability does not present an exceptional or unusual disability picture rendering impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for filariasis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, Part 4, Diagnostic Code 6305 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, it is noted that the veteran's claim is well grounded; that is, it is plausible and capable of substantiation. All relevant facts have been properly developed and no further assistance to the veteran is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a) (West 1991). The service medical records reveal the veteran was first treated for filariasis in November 1943. A service medical survey done on the veteran in May 1945 reported that, since November 1943 the veteran had had frequent exacerbations of the filarial disorder with the symptoms consisting of swelling in the left testicle. In July 1945, the veteran filed a claim for service connection for filariasis. An RO rating decision dated in July 1945 service connected the veteran for filariasis and assigned a 50 percent evaluation based on the evidence contained in the service medical records. A subsequent RO rating decision dated in December 1945, reduced the 50 percent evaluation to a 20 percent rating based on the report of a VA medical examination conducted in November 1945 which indicated that the veteran had no swellings on any part of the body. An RO rating decision dated in September 1949 reduced the 20 percent evaluation to a noncompensable rating. This reduction was based on a report received from a VA hospital dated in June 1949 which indicated the veteran was asymptomatic for filarial residuals. An RO rating decision dated in September 1966 increased the veteran's evaluation to 30 percent based on contemporary clinical evidence which reported that the veteran's left testicle was tender and diffusely enlarged (approximately three times larger than the right testicle). The veteran has maintained this 30 percent evaluation up through the present. The Board notes the current rating is protected from reduction under the provisions of 38 C.F.R. § 3.951(b) (1993). In July 1991 the veteran requested an increased evaluation for the filariasis disorder. In support of this request, there was submitted into evidence a letter dated in September 1991 from M. Orocofsky, M. D. This letter indicated, essentially, that the veteran had a history of filariasis which was manifested by a symptomatic scrotum and recurring epididymitis. These manifestations were said to cause the veteran chronic discomfort and to make him walk bowlegged. A VA examination was conducted in March 1992. By history it was related that since separation from service, the veteran had had 20 episodes of swelling of the left testicle with accompanying tenderness. The last recurrence of this symptomatology was noted to be in 1984, and the next prior incident was reported to have occurred in 1973. On physical examination, the external genitalia were reported normal without evidence of swelling or pain. No other corporal swelling was reported. A laboratory analysis of the veteran's blood was conducted for the presence of microfilariae. The results of this analysis were negative for the presence of Filaria. Diagnoses were past history of filariasis with residuals of recurrent left epididymitis and no evidence of acute filariasis. The case made its way to the Board and in August 1993 it was remanded for further development based on the veteran's assertions that he had been treated previously for the disorder at other VA facilities. In response to the Board's remand, the record reflects that the RO inquired of three other VA medical centers as to the presence of additional medical records on the veteran. The inquiries directed to VA Medical Centers located at Bay Pines, and Miami, Florida, produced negative responses. An inquiry to the VA Medical Center in Shreveport, Louisiana, produced medical records dated between June 1974 and September 1976. These records reflect that in August 1974 the veteran was treated for complaints of scrotal pain, and that he had some slight scrotal swelling. No records were received from this VA medical center that were indicative of the veteran's current medical status with regards to filariasis Disability evaluations are based upon comparison of clinical findings with the applicable schedular criteria. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1993). Under the applicable schedular criteria, a filarial infection that is chronic with repeated recurrences and with a tendency to severe multiple involvement of extremities and genitalia or severe lymphadenitis warrants a 100 percent evaluation. A chronic filarial infection with repeated recurrences and beginning permanent deformity of one or more extremities or genitalia or moderate lymphadenitis warrants a 60 percent evaluation. Chronic filariasis following any recurrence that is symptomatic warrants a 30 percent evaluation. Additionally, a filarial disorder that has resulted in permanent deformity of an extremity or of the genitalia that is severe also warrants a 60 percent evaluation. If the deformity is moderate, a 30 percent evaluation is warranted. 38 C.F.R. Part 4, Diagnostic Code 6305 (1993). The most recent clinical evidence of record, that is the VA examination conducted in March 1992, reported that the veteran had normal genitalia. Additionally, it made no reference to any active filarial symptoms. This lack of filarial symptomatology was consistent with a laboratory report that was negative for the presence of filaria. Accordingly, the evidentiary record does not warrant the assignment of a higher evaluation under the schedular criteria. Additionally, the Board has given consideration to the potential application of various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the following regulations do not provide a basis upon which to assign an evaluation higher than 30 percent. 38 C.F.R. §§ 4.1, 4.2, 4.7, and 4.10 (1993). The claim also does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization due to the service-connected filariasis so as to render impractical the application of the regular schedular standards. Accordingly, an evaluation higher than 30 percent on an extraschedular basis is not warranted. 38 C.F.R. § 3.321(b)(1) (1993). In reaching its decision herein, the Board has considered the doctrine of affording the veteran the benefit of any doubt as mandated by 38 U.S.C.A. § 5107(b). However, the evidentiary record is not so evenly balanced in its positive and negative aspects so as to reach a decision in this matter on that basis. ORDER An increased evaluation for residuals of filariasis is denied. JAN DONSBACH 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.