Citation Nr: 0006578 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 96-12 379 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a skin condition to include skin cancer due to exposure to Agent Orange. 2. Entitlement to an increased evaluation for multiple nevi on the anterior and posterior aspect of the chest and history of scaly, flaking lesions of the scalp compatible with seborrheic dermatitis (previously shown as seborrheic keratosis and skin nevi), currently rated as 10 percent disabling. 3. Entitlement to an increased evaluation for remote injury to the right foot, hammertoe deformity of the 4th and 5th toes of the right foot with functional loss due to pain, currently rated as 20 percent disabling. 4. Entitlement to an effective date earlier than November 3, 1994, for the assignment of a 20 percent disability rating for remote injury to the right foot, hammertoe deformity of the 4th and 5th toes of the right foot with functional loss due to pain. 5. Entitlement to service connection for traumatic arthritis of multiple joints. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Chaplin, Counsel INTRODUCTION The veteran had active service from January 1960 to July 1960, from October 1961 to November 1969, and from March 1971 to July 1982. This matter came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of July 1995, from the Montgomery, Alabama, regional office (RO) of the Department of Veterans Affairs (VA) which in pertinent part denied a compensable evaluation for service connected seborrheic keratoses and skin nevi and denied service connection for cancer due to Agent Orange exposure. In addition, the RO reevaluated the veteran's service-connected right foot disorder to include traumatic arthritis; however, the claim for an increased evaluation for that disability, rated as 10 percent disabling, was denied. This matter further arises from a December 1998 rating decision that granted a 20 percent disability evaluation for remote injury to the right foot, hammertoe deformity of the 4th and 5th toes of the right foot with functional loss due to pain effective from November 3, 1994; and denied service connection for traumatic arthritis of multiple joints. A personal hearing on appeal was held on December 9, 1996, in Montgomery, Alabama, before Nancy I. Phillips, who is the member of the Board rendering the final determination in this claim and was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7107(c) (West Supp. 1999) (amending 38 U.S.C.A. § 7107 (West 1991)). The Board remanded the claim in April 1997 for additional development. Subsequently, having complied with the instructions on Remand, the RO returned the case to the Board for appellate review. While the appeal was in remand status, in a rating decision in December 1998, the RO assigned a 20 percent evaluation for remote injury to the right foot, hammertoe deformity of the 4th and 5th toes of the right foot with functional loss due to pain, formerly rated as residuals, injury of right foot with clawing of 4th and 5th toes to include traumatic arthritis. The RO also assigned a 10 percent evaluation for multiple nevi on the anterior and posterior aspect of the chest and history of scaly, flaking lesions of the scalp compatible with seborrheic dermatitis (previously shown as seborrheic keratosis and skin nevi). Although increased evaluations were assigned for these disabilities, the issues remain on appeal. Where claimant has filed notice of disagreement (NOD) as to regional office (RO) decision assigning particular disability rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate pending appeal. On a claim for original or increased disability rating, claimant will generally be presumed to be seeking maximum benefit allowed by law and regulation and, thus, such claim remains in controversy where less than maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). The attention of the RO is directed to the memos in the file requesting that the veteran be issues a statement of the case regarding his annual clothing allowance claim. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained by the agency of original jurisdiction. 2. The veteran served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 but the evidence does not show that he has a disease listed at § 3.309(e). 3. Service medical records are negative for complaints of, treatment for, or diagnosis of residuals of exposure to Agent Orange. 4. No present disability of skin cancer is shown. 5. No competent medical evidence has been submitted establishing a link between the veteran's skin condition and exposure to Agent Orange during service. 6. Recent VA skin examination findings, in June 1998, show one slightly elevated red area 2-3 mm in diameter, no flaking on the scalp and no scaly scalp lesions and no signs of seborrheic dermatitis noted on the face or on the chest. Multiple pigmented nevi were noted on both the anterior and posterior aspect of the chest. 7. The June 1998 VA examiner characterized the skin lesions on the scalp as minimal and found no significant lesions involving the head, face and neck 8. The veteran's right foot disability is manifested by moderate functional impairment and functional loss due to pain. 9. The veteran failed to complete an appeal within the required time on the issues of entitlement to an earlier effective date for the assignment of a 20 percent disability rating for a right foot disability and entitlement to service connection for traumatic arthritis of multiple joints. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim for service connection for a skin condition to include skin cancer claimed as residuals of exposure to herbicide agents used in Vietnam. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 2. The criteria for a rating greater than 10 percent for multiple nevi on the anterior and posterior aspect of the chest and history of scaly, flaking lesions of the scalp compatible with seborrheic dermatitis (previously shown as seborrheic keratosis and skin nevi), have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. § 4.118, Diagnostic Code 7819 (1999). 3. The criteria for a rating greater than 20 percent for remote injury to the right foot, hammertoe deformity of the 4th and 5th toes of the right foot with functional loss due to pain have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5284 (1999). 4. The veteran did not perfect an appeal by the filing of a timely and adequate substantive appeal as to the December 1998 RO assignment of November 3, 1994, as the effective date for a 20 percent disability evaluation for remote injury to the right foot, hammertoe deformity of the 4th and 5th toes of the right foot with functional loss due to pain; therefore, the Board does not have jurisdiction and the issue is dismissed. 38 U.S.C.A. §§ 7105(d)(3), 7108 (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.303, 20.304 (1999). 5. The veteran did not perfect an appeal by the filing of a timely and adequate substantive appeal as to the December 1998 RO denial of service connection for traumatic arthritis of multiple joints; therefore, the Board does not have jurisdiction and the issue is dismissed. 38 U.S.C.A. §§ 7105(d)(3), 7108 (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.303, 20.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Background Service connection was granted by the RO in a rating decision in May 1970 for residuals of injury, right foot with fracture of 4th and 5th toes. A noncompensable evaluation was assigned under diagnostic code 5299 effective from November 1969. It was also noted that Morton's toe was considered a constitutional or developmental abnormality and not a disability under the law. The noncompensable evaluation for a right foot disability was confirmed and continued by rating decision dated in August 1982. Our review notes that, in a rating decision of August 30, 1982, the RO granted service connection for residuals of scar from basal cell carcinoma, back of neck, completely excised, evaluated as noncompensable effective from August 1, 1982. This condition had been claimed as cancer by the veteran. Service connection was also granted for seborrheic keratoses and skin nevi, evaluated as noncompensable effective from August 1, 1982. The September 1, 1982 notification to the veteran of the RO's determination referred to these service- connected disabilities as new growth of the skin and skin condition. In a rating decision in January 1985, the noncompensable evaluations were confirmed and continued. In a January 1985 rating decision, the RO increased the right foot disability evaluation to 10 percent effective from August 1, 1982, now rated under diagnostic code 5284 for residuals of injury of right foot with clawing of the fourth and fifth toes. Outpatient treatment records show that the veteran has had surgical removal of skin lesions. The pathology reports from 1988 to 1997 indicate that the incised lesions were diagnosed as intradermal nevus; skin with angiolipoma; lipoma; angiolipoma; dermal fibrosis, no evidence of neoplasm; multiple nevi and dysplastic nevus. The pathology report in June 1989 for punch biopsies taken from the left upper abdomen and the left lower abdomen were diagnosed as consistent with dysplastic nevus. In September 1989 there was re excision of the left mid side upper and left mid side lower, with a microscopic diagnosis of dermal fibroplasia and chronic inflammation consistent with previous biopsy site. The pathology report further indicated that there was no evidence of residual dysplastic nevus. The pathology report in November 1994 had a diagnosis of angiolipoma times two. In November 1994, in pertinent part, the veteran sought increased evaluations for new growth of the skin and skin condition. With his claim, the veteran submitted treatment records, pathology reports, and a newspaper article. He was notified that an examination would be scheduled. The veteran was afforded a VA skin examination in November 1994. The history, as reported by the veteran, was that he served in Vietnam and frequently did not wear a shirt. He recalled that the area outside of his compound was periodically sprayed with an herbicide and while on a road convoy, the herbicide was directly sprayed upon him. The veteran claimed that he now had recurrent skin growths above his waistline which he thought were related to the exposure to herbicides in Vietnam. He has had multiple surgical removals of skin growths, including some recent removals. One was found to be a skin cancer and other lesions were dysplastic nevus and seborrheic keratosis. At the time of the examination, the veteran had no known skin lesions. The objective findings noted sutures still in place from recent biopsy over the right upper extremity, right posterior side of the upper back and above the right elbow joint medially. There were numerous petechiae present over his trunk area. No growths were noted on his chest. Several well healed scars were noted from previous biopsies located anteriorly on the chest and upper extremities bilaterally. The examiner noted that the skin growth occurred above the waist, over the chest, back and upper extremities with additional lesions on the abdomen. The diagnosis was history of seborrheic keratosis, status post surgical removal; and history of skin cancer, right side of neck, status post surgical removal. No active lesions were present consistent with skin cancer. It was also noted that the veteran has a history of dysplastic nevus with no active lesions present. At the time of the examination, the pathology report was pending for the recent removal of three abnormal lesions. As noted above, the diagnosis on the pathology report was angiolipoma times two. A rating decision in July 1995 denied an increased evaluation for the service-connected seborrheic keratoses and skin nevi, and denied service connection for skin cancer due to Agent Orange exposure. The RO noted that the evidence shows that the veteran had developed a traumatic arthritis in his right foot and amended the rating to include arthritis as a residual of the injury of the right foot. However, the rating evaluation did not change as the RO determined there was no evidence of increased disability caused by the arthritis beyond the disability evaluation presently assigned. The veteran presented testimony at a personal hearing before the undersigned Member of the Board in December 1996 as manifested by a copy of the transcript contained in the claims file. The veteran testified as to symptoms and manifestations of his disabilities and the effect on his life. The veteran was afforded a VA medical examination in June 1998. The veteran reported that since the injury he has had chronic pain in the right foot. The pain is felt almost daily and is worse with standing or squatting. Walking can only be done for thirty to sixty minutes. He only uses Tylenol for treatment. The veteran also reported experiencing swelling of the right foot for the past three years. The veteran related that he had been prescribed special shoes from VA but did not bring the shoes to the examination as they were in need of repair. It was noted that no operation has been performed on the right foot and that the veteran does not use crutches, brace or cane for right foot problems. He reported working at a furniture store collecting bills, doing deliveries and doing office work. Clinical findings revealed no tenderness and no edema. Hammertoe deformities in the fourth and fifth toes on the right foot were noted. The interphalangeal joint in the fifth toe is fixed in flexion at 55 degrees. The interphalangeal joint in the fourth toe is fixed in flexion at 50 degrees. It was noted that the veteran was able to evert and invert both feet without difficulty, there were good pulses and no decreased temperature. It was also noted that there was no redness and no tenderness in the toes. The veteran was able to stand on his heels and toes and walk without difficulty. The examiner questioned the presence of a right limp favoring the right lower extremity. No unusual wear was noted on the athletic-type shoes the veteran was wearing. The X-ray report indicated subungual spurs of the first toe, otherwise a normal right foot. The diagnosis was remote injury to the right foot and hammertoe deformity of the fourth and fifth toes of the right foot. The examiner wrote: In the opinion of the examiner there is limitation of motion of the interphalangeal joints of the fourth and fifth toes. No weakness or easy fatigability is noted. No incoordination is noted. No problems are noted with executing skill movements smoothly except there is fixation of the interphalangeal joints of the fourth and fifth toes. In the opinion of the examiner there is moderate functional impairment because of this problem. Functional loss due to pain in the opinion of the examiner, is moderately significant. Also in June 1998, the veteran was afforded a VA examination of the skin. The clinical examination findings show one slightly elevated red area 2-3 mm in diameter. The examiner noted no flaking on the scalp and no scaly scalp lesions. There were no signs of seborrheic dermatitis noted on the face or on the chest. Multiple pigmented nevi, some pedunculated and some slightly elevated were noted on both the anterior and posterior aspect of the chest. The examiner found no acne-like lesions. It was noted that there were scaly, slightly red areas between some of the toes. The diagnoses were: 1. History of scaly, flaking lesions of the scalp compatible with seborrheic dermatitis. 2. Multiple nevi on the anterior and posterior aspect of the chest. 3. Remote history of a skin cancer previously excised from the postauricular area, type unknown. 4. Tinea pedis. The examiner wrote: The [veteran's] skin lesions on the scalp are minimal at this time, but the history is compatible with seborrheic dermatitis, which has come under fairly good control on present treatment. This examiner does not see any evidence of chloracne nor any evidence of soft tissue sarcoma at the present time. Color photographs were not made because no significant lesions were noted involving the head, face and neck. In a December 1998 rating decision, based on the examination findings, the RO assigned a 10 percent disability evaluation under diagnostic codes 7899 and 7819 for multiple nevi on the anterior and posterior aspect of the chest and history of scaly, flaking lesions of the scalp compatible with seborrheic dermatitis (previously shown as seborrheic keratosis and skin nevi). The 10 percent disability rating was effective from November 1994. Also in the December 1998 rating decision, based on the examination findings, the RO increased the disability evaluation to 20 percent disabling from November 1994 under diagnostic codes 5010 and 5284 for remote injury to the right foot, hammertoe deformity of the 4th and 5th toes of the right foot with functional loss due to pain (previously shown as residuals, injury of the right foot with clawing of 4th and 5th toes to include traumatic arthritis DC 5284-5010). Analysis I. Service connection for skin condition, to include skin cancer, due to Agent Orange exposure The veteran filed a claim for service connection for cancer due to Agent Orange exposure. In the Board's remand in April 1997, it was noted that based on testimony elicited during his personal hearing in December 1996, the veteran appeared to be claiming service connection for a type of skin cancer due to Agent Orange exposure. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service and not the result of the veteran's own willful misconduct. 38 C.F.R. §§ 3.301, 3.303 (1999). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (1997) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; multiple myeloma; Non-Hodgkin's lymphoma; acute and subacute peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1999). The diseases listed at § 3.309(e) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii) (1999). The beginning and ending dates of the Vietnam era are the period beginning on February 28, 1961, and ending on May 7, 1975, inclusive, in the case of a veteran who served in the Republic of Vietnam during that period. The period beginning on August 5, 1964, and ending on May 7, 1975, inclusive, in all other cases. 38 C.F.R. § 3.2 (1999). 38 C.F.R. § 3.307(a)(6) provides that for the purposes of the section regarding diseases associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309(e) (1999) a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 and has a disease listed at § 3.309(e) shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. The last date on which such a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he or she served in the Republic of Vietnam during the Vietnam era. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii) (1999). Further, the Secretary of the Department of Veterans Affairs has determined that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition other than those for which the Secretary has specifically determined that a presumption of service connection is warranted. Notwithstanding the foregoing, the United States Court of Appeals for the Federal Circuit determined that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2725, 2727-29 (1984) does not preclude a veteran from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). However, the Court has held that where the issue involves medical causation, competent medical evidence which indicates that the claim is plausible or possible is required to set forth a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The law provides that "a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991). Establishing a well grounded claim for service connection for a particular disability requires more than an allegation that the disability had its onset in service or is service- connected; it requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation. See Franko v. Brown, 4 Vet. App. 502, 505 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The three elements of a "well grounded" claim are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); see also 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1998). Generally, competent medical evidence is required to meet each of the three elements. However, for the second element the kind of evidence needed to make a claim well grounded depends upon the types of issues presented by a claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For some factual issues, such as the occurrence of an injury, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. Lay evidence is also acceptable to show incurrence in service if the veteran was engaged in combat and the evidence is consistent with the circumstances, conditions and hardships of such service, even though there is no official record of such incurrence. 38 U.S.C.A. § 1154 (West 1991); 38 C.F.R. § 3.304(d) (1999). The Board finds that the claim is not well-grounded. We acknowledge that exposure to herbicide agents is presumed for a veteran who served on active duty in the Republic of Vietnam during the Vietnam era and who has a disease listed at 38 C.F.R. § 3.309(e). However, the presumption of exposure to herbicide agents does not apply in this case as the veteran does not have a condition listed in 38 C.F.R. § 3.309(e). The veteran is already service connected for residuals of the skin cancer excised in 1969. The current medical evidence does not reflect any other skin cancer. Nor does the current medical evidence reflect that he has chloracne or soft tissue sarcoma at that time. No significant lesions were noted involving the head, face and neck. As noted above, a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam era is not warranted for any condition other than those for which the Secretary has specifically determined that a presumption of service connection is warranted. Additionally, no medical opinion has been submitted which shows that the veteran any of the veteran's skin disorders is due to exposure to Agent Orange in service. To support the claim, we have only the veteran's opinion of a causal connection between a skin condition to include skin cancer and exposure to Agent Orange in service. The record does not contain any medical evidence corroborating the appellant's claim. Personal statements made by the appellant are of little probative value without corroborating medical evidence. While we do not doubt that he is sincere in his belief, he is not qualified to offer such an opinion. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (A lay person is not qualified to make medical diagnoses). Moreover, mere contentions of the appellant without supporting evidence do not constitute a well-grounded claim. King v. Brown, 5 Vet. App. 19 (1993). In sum, none of the veteran's skin disorders is among the diseases that VA has determined may be presumed to be the result of his exposure to herbicides. There is also no evidence of incurrence in service, and he has failed to present competent medical evidence showing a nexus between a present disability and an inservice disease or injury. Accordingly, the claim for service connection for residuals claimed as a skin condition to include skin cancer due to Agent Orange exposure is not well grounded. Other considerations The Board acknowledges that it has decided the present appeal on a different basis than the RO did. When the Board addresses in a decision a question that has not been addressed by the RO, it must be considered whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board concludes that the veteran has not been prejudiced by the decision herein. The veteran was denied service connection for residuals of exposure to Agent Orange. The Board has considered the same law and regulations. The Board merely concludes that the veteran did not meet the initial threshold evidentiary requirements of a well grounded claim. The result is the same. Where the veteran has not met the burden of submitting evidence of a well grounded claim, the VA has no duty to assist him in developing facts pertinent to such claim. 38 U.S.C.A. § 5107(a) (West 1991). However, where a claim is not well-grounded it is incomplete, and depending on the particular facts of the case, VA is obliged under 38 U.S.C.A. § 5103(a) to advise the claimant of the evidence needed to complete his application. See Robinette v. Brown, 8 Vet. App. 69 (1995). This obligation only attaches where the veteran's application is incomplete and references existence of evidence which could serve to render his claim plausible. Epps v. Brown, 9 Vet. App. 341, 344 (1996). We have not found that the veteran has put VA on notice of the possible existence of a specific, particular piece of evidence that, if submitted, could possibly make his claim plausible. Nevertheless, the rating decision, statement of the case, and this Board decision inform the veteran of the evidence that is lacking to make his claim well grounded. Our decision relates that VA had determined that these conditions were not associated with herbicide exposure and there was no other basis for service connection. In addition, VA had determined, under the authority granted by the Agent Orange Act of 1991, that a presumption of service connection was not warranted for any condition other than those for which VA had found a positive association between the condition and exposure to Agent Orange in Vietnam. Further, in this instance, the Board's decision informs the appellant that he needs to submit competent medical evidence of a nexus between a present disability, and an in-service disease or injury or a service-connected disability to have a well-grounded claim for service connection. II. Increased evaluations The veteran claimed that his service-connected seborrheic keratosis and skin nevi and his right foot disability had worsened. The United States Court of Claims for Veterans Appeals (prior to March 1, 1999, the U.S. Court of Veterans Appeals)(hereinafter "the Court") has held a claim for an increased rating for a disability to be well grounded when an appellant indicates that the severity of the disability has increased. See Proscelle v. Derwinski, 2 Vet. App. 629, 631- 32 (1992). Accordingly, we find these claims to be well grounded. Furthermore, the veteran has not indicated that any probative evidence not already associated with the claims folder is available; therefore the duty to assist him has been satisfied. 38 U.S.C.A. 5107(a) (West 1991). Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155 (West 1991). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). In determining the level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2, 4.41 (1999). Although the evaluation of a service-connected disorder requires a review of the veteran's entire medical history regarding that disorder, the primary concern in a claim for an increased evaluation for a service- connected disorder is the current level of disability. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Peyton v. Derwinski, 1 Vet. App. 282 (1991); 38 C.F.R. §§ 4.1 and 4.2 (1999). "[T]he regulations do not give past medical reports precedent over current findings." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1999). It is also necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2 (1999), and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3 (1999). If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (1999). By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 3.102 (1999). A. Multiple nevi on the anterior and posterior aspect of the chest and history of scaly, flaking lesions of the scalp compatible with seborrheic dermatitis (previously shown as seborrheic keratosis and skin nevi) The veteran's skin condition, multiple nevi on the anterior and posterior aspect of the chest and history of scaly, flaking lesions of the scalp compatible with seborrheic dermatitis (previously shown as seborrheic keratosis and skin nevi), has been evaluated by analogy under 38 C.F.R. Part 4, § 4.118, Diagnostic Code 7819 for new growths, benign, skin, which are to be rated as "scars, disfigurement, etc." The regulations also indicate that, unless otherwise provided, diagnostic codes 7807 through 7819 are rated as for eczema, dependent upon location, extent, and repugnant or otherwise disabling character of manifestations. In general, the Schedule classifies most skin disorders as analogous to symptomatology of eczema. 38 C.F.R. § 4.118, Diagnostic Codes 7807-7819 (1999). Diagnostic Code 7800 provides for a 10 percent evaluation for a moderately disfiguring scar of the head, face, or neck. A 30 percent evaluation requires that such a scar be severely disfiguring and this evaluation is especially appropriate if the scar produces a marked and unsightly deformity of the eyelids, lips, or auricles. A 50 percent evaluation requires that such scarring result in complete or exceptionally repugnant deformity of one side of the face or in marked or repugnant bilateral disfigurement. The 10 percent evaluation may be increased to 30 percent or the 30 percent evaluation may be increased to 50 percent or the 50 percent evaluation may be increased to 80 percent if there is marked discoloration, color contrast, or the like in addition to tissue loss and cicatrization. The most repugnant, disfiguring conditions, including scars and diseases of the skin, may be submitted for central office rating, with several unretouched photographs. 38 C.F.R. § 4.118, Diagnostic Code 7800 (1999). Under Diagnostic Code 7806 for eczema, a 10 percent disability rating is warranted for exfoliation, exudation, or itching, if involving an exposed surface or extensive area. In order to warrant a 30 percent evaluation, the evidence would have to show constant exudation or itching, extensive lesions, or marked disfigurement. A 50 percent rating is warranted with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. In assigning a disability rating for a skin disorder, the Board notes that consideration must be given to the frequency and duration of the outbreaks as well as the appearance and virulence of the skin disorder during the outbreaks. See Bowers v. Derwinski, 2 Vet App 675, 676 (1992). See also Arms v. West, 12 Vet. App. 188, 198 (1999) (lay observation is competent to identify the existence of an observable skin disorder); Bruce v. West, 11 Vet. App. 405 (1998)(lay testimony of symptomatology may be regarded as supplementing VA examination). Upon consideration of the medical evidence, lay history and testimony of record, the Board finds by a preponderance of the evidence, that a 30 percent disability rating is not warranted for the veteran's service-connected skin condition whether evaluated as analogous to disfiguring scars or to eczema. In this respect, the appellant's seborrheic dermatitis manifests itself as scaly, flaking lesions of the scalp but is well controlled by medicated shampoo and symptoms were not noted at the June 1998 VA medical examination. The veteran also has multiple nevi on the back and front chest. The evidence, lay and medical, does not show that the lesions are extensive or that there is exudation. Further, the evidence does not show "itching constant" associated with the service connected skin disorder. Color photographs were not made as the examiner found no significant lesions involving the head, face and neck. So, the Board concludes that the skin disorder is not markedly disfiguring. Accordingly, the criteria for a rating greater than 10 percent have not been met. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. § 4.3 (1999). B. Remote injury to the right foot, hammertoe deformity of the 4th and 5th toes of the right foot with functional loss due to pain The veteran's right foot condition was originally evaluated under Diagnostic Code 5299-5282, for residuals of injury of right foot with fracture of the fourth and fifth toes. This was subsequently changed to evaluation under Diagnostic Code 5284 for residuals of injury of right foot with clawing of the fourth and fifth toes. When the medical evidence showed the veteran had developed a traumatic arthritis, the RO added Diagnostic Code 5010, for arthritis due to trauma. The veteran is currently evaluated for his right foot condition under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5284 at 20 percent disabling. Traumatic arthritis is rated as degenerative arthritis, which is rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint involved. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5010 (1999). Diagnostic Code 5284, for other foot injuries, provides for a 10 percent evaluation for a moderate disability, a 20 percent evaluation for a moderately severe disability, and a 30 percent evaluation for a severe disability. 38 C.F.R. Part 4, § 4.71a, Diagnostic Code 5284 (1999). It must be noted that terms such as "moderate" and "severe" are not defined in VA regulations. Rather than applying an inflexible formula, it is incumbent upon the Board to arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6 (1999). It should also be noted that the use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1999). Based on the medical findings and the veteran's contentions, the Board finds that the symptoms the veteran experiences in his right foot are adequately compensated by the current 20 percent disability rating. In the Board's view, the objective evidence is not indicative of severe right foot disability or functional impairment which could serve as the basis for the assignment of an evaluation in excess of 20 percent disabling at the present time. The Board places emphasis upon the June 1998 VA examination which indicates that the veteran has moderate functional impairment due to the hammertoe deformities. Impairment of the foot to this degree is 10 percent disabling under Diagnostic Code 5284. He also has moderately significant functional impairment of the foot due to pain, thereby warranting an additional 10 percent. The Board finds that a 20 percent disability evaluation overall is warranted on the basis of additional disability due to functional loss due to pain under 38 C.F.R. §§ 4.40 and 4.45. See VAOPGCPREC 9-98. These symptoms and findings, however, are not sufficient to warrant a disability rating greater than 20 percent according to the rating schedule. Any pain affecting function of the foot is not shown to a degree beyond that contemplated by the current schedular evaluation assigned to this disability, as reflected by the medical findings of record which do not meet the criteria for the next higher schedular evaluation. Severe foot disability is not shown by the evidence. Finally, the Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the current level of the veteran's disability in his favor. However, the objective medical evidence does not create a reasonable doubt regarding the current level of his right foot disability. Accordingly, the Board finds that the preponderance of the evidence is against assignment of a disability rating greater than 20 percent for the veteran's service- connected remote injury to the right foot, hammertoe deformity of the 4th and 5th toes of the right foot with functional loss due to pain. III. Earlier effective date for the assignment of a 20 percent disability rating for a right foot disability and service connection for traumatic arthritis of multiple joints "[I]t is well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, that a potential jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party, at any stage in the proceedings, and once apparent, must be adjudicated." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); see also Johnson (Anne) v. Brown, 7 Vet. App. 25, 27 (1994) (per curiam); Zevalkink v. Brown, 6 Vet. App. 483, 488 (1994), aff'd, 102 F.3d 1236 (Fed. Cir. 1996). Accordingly, a court or tribunal always has authority to determine its jurisdiction over a case. See Phillips v. Brown, 10 Vet. App. 25, 30 (1997) (citing Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773 (1946)); Breslow v. Brown, 5 Vet. App. 560, 562 (1993)). A notice of disagreement (NOD) is a document that initiates an appeal from an agency of original jurisdiction to the Board. Burton v. Derwinski, 933 F.2d 988 (Fed. Cir. 1991). Upon receipt of an NOD, the RO issues a statement of the case (SOC). After a claimant receives the SOC, he must file a jurisdiction-conferring Form 1-9 within sixty days from the date the SOC is mailed or within the remainder of the one- year period from the date the notification of the RO decision was mailed, whichever period is later. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.302(b). Archbold v. Brown, 9 Vet. App. 124, 132 (1996). Form 1-9 affords the appellant the opportunity to consider the reasons for an adverse RO decision, which is explained in the SOC, and to formulate and present specific arguments with respect to the decision made. 38 U.S.C.A. § 7105 (d)(3); 38 C.F.R. S 20.202; Roy v. Brown, 5 Vet. App. 554 (1993). A substantive appeal can be set forth on a VA Form 9 or on correspondence specifically identifying the issues appealed and setting out specific arguments relating to the errors of fact or law made by the agency of original jurisdiction (AOJ). See 38 U.S.C.A. § 7105(d); 38 C.F.R. § 20.202. The Board further notes that an appellant may request an extension of the period for filing a substantive appeal for good cause. The request for such an extension should be in writing and must be prior to the expiration of the time limit for filing the substantive appeal. 38 U.S.C.A. § 7105(d)(3) (West 1991); 38 C.F.R. §§ 20.202, 20.303 (1999). Review of the claims file discloses no evidence that the appellant requested such an extension. If an appellant fails to complete an appeal within the required time, it is incumbent upon the Board to reject the application for review on appeal. This is not a matter within the Board's discretion; the timeliness standards for filing appeals to the Board are prescribed by law. These requirements are stated specifically in 38 U.S.C.A. § 7105 (West 1991) and 38 C.F.R. § 20.302 (1999). Under the provisions of 38 U.S.C.A. § 7108 (West 1991), if there is a failure to meet these requirements an application for review on appeal shall not be entertained. Furthermore, it has been held that the timeliness standards are clear and unambiguous and that in the absence of a timely substantive appeal the proper action for the Board is to dismiss the claim. Roy v. Brown, 5 Vet. App. 554 (1993). The December 1998 determination of the RO is the action appealed on the issues of entitlement to an effective date earlier than November 3, 1994, for a 20 percent disability rating for remote injury to the right foot, hammertoe deformity of the 4th and 5th toes of the right foot with functional loss due to pain and entitlement to service connection for traumatic arthritis of multiple joints. The date of notification of this decision was December 14, 1998. An NOD was received from the veteran on January 11, 1999, and the RO issued an SOC on January 27, 1999. He was properly informed by the RO of the time period within which to perfect his appeal on these issues by filing a VA Form 9. Under the circumstances described above, the Board finds that the veteran had one year from the date of notification or until December 14, 1999, to perfect an appeal concerning the propriety of the effective date for the 20 percent disability rating for remote injury to the right foot, hammertoe deformity of the 4th and 5th toes of the right foot with functional loss due to pain and entitlement to service connection for traumatic arthritis of multiple joints. This was not done and, thus the appeal was not properly perfected. In addition, no document is contained in the record which could reasonably be construed as a substantive appeal during the applicable one-year period by virtue of the fact that it contains allegation of error or fact on these issues, The Board is therefore without jurisdiction, and the claim is dismissed. ORDER A well-grounded claim for service connection for a skin condition to include skin cancer due to exposure to Agent Orange not having been submitted, the claim is denied. An increased evaluation for multiple nevi on the anterior and posterior aspect of the chest and history of scaly, flaking lesions of the scalp compatible with seborrheic dermatitis (previously shown as seborrheic keratosis and skin nevi) is denied. An increased evaluation for remote injury to the right foot, hammertoe deformity of the 4th and 5th toes of the right foot with functional loss due to pain is denied. The claim regarding the propriety of the effective date for assignment of a 20 percent evaluation for remote injury to the right foot, hammertoe deformity of the 4th and 5th toes of the right foot with functional loss due to pain, is dismissed. The claim regarding the propriety of the denial of service connection for traumatic arthritis of multiple joints, is dismissed. NANCY I. PHILLIPS Member, Board of Veterans' Appeals