BVA9500293 DOCKET NO. 93-05 229 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for bronchial asthma. 2. Entitlement to an increased rating for atopic dermatitis, currently evaluated as 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Mark D. Hindin, Counsel INTRODUCTION The veteran had active service from September 1960 to November 1964. This matter arises from an October 1990 rating decision in which the regional office (RO) denied entitlement to service connection for bronchial asthma and granted service connection for atopic dermatitis but established a noncompensable evaluation for the disability, and from a February 1991, rating decision which increased the evaluation for atopic dermatitis to 10 percent, effective from the date of service connection. The veteran, through his representative's brief on appeal, has raised the issue of entitlement to service connection for kyphosis of the thoracic spine due to osteochondritis. This issue has not been developed for appellate consideration and is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he developed bronchial asthma in service and that the evidence does not show that the condition preexisted service. He further asserts that his atopic dermatitis is extensive and disfiguring and accordingly warrants an increased evaluation. 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 files. 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 evidence is in favor of the grant of service connection for bronchial asthma, but that the preponderance of the evidence is against the grant of an increased rating for atopic dermatitis. FINDINGS OF FACT 1. All evidence necessary for an equitable resolution of this case has been secured. 2. Chronic bronchial asthma was first demonstrated during service. 3. The veteran's atopic dermatitis is extensive, but does not involve exudation, constant itching, extensive lesions or marked disfigurement. CONCLUSIONS OF LAW 1. Bronchial asthma was incurred in active service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1993). 2. An evaluation in excess of 10 percent for atopic dermatitis is not warranted. 38 U.S.C.A.. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.20, Part 4, Diagnostic Code 7820 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran has presented well-grounded claims within the meaning of 38 U.S.C.A. § 5107. In this regard it is noted that he has submitted evidence in support of his claims which renders them plausible. The Board also finds that the Department of Veterans Affairs (VA) has complied with its obligation to assist him with the development of those claims under the same code provision. I. Bronchial Asthma The RO denied entitlement to service connection for bronchial asthma on the basis that the disability had pre-existed service and not been aggravated therein. Service connection is unavailable for diseases or disabilities which pre-exist service and are not aggravated therein. 38 U.S.C.A. §§ 1153; 38 C.F.R. § 3.306. The RO's decision was based on a reported notation in the service medical records in June 1962, that the veteran had had asthma all his life. Neither the veteran's representative, or this Board has been able to locate that notation. Even if it could be located, the Board would be unable to conclude that the veteran's asthma preexisted service and was not aggravated therein. A veteran is presumed to be in sound condition when entering service except for conditions which are noted when examined, accepted and enrolled for service. This presumption is rebuttable only by clear and unmistakable evidence. 38 U.S.C.A. § 1111. In this case, asthma was not reported at the time of the veteran's examination and acceptance for service. The presumption of soundness is therefor for application. The only evidence supporting a conclusion that bronchial asthma preexisted service, consists of the aforementioned notation reported to have been in the service medical records. On the other hand, there is nothing in the record to confirm this history, and a number of reports which contradict it. The service medical records show that the veteran was initially suspected of having asthma in April 1961, when he experienced a sudden onset of pain and difficulty breathing. He was found to have extensive rales and rhonchi. The condition was thought to resemble bronchial asthma. Significantly, it was noted that the veteran denied any history of asthma or bronchitis. On examinations and reports of medical history dated in March and September 1964, and in a clinical history for an X-ray examination request in July 1963, the veteran's asthma was dated from 1961. The veteran reported a similar history in his initial claim for benefits received in July 1990, and on VA examination in October 1990. Given the contradictory evidence, the Board cannot conclude that the alleged single notation in June 1962, constitutes clear and unmistakable evidence that asthma preexisted service. In fact, the preponderance of the evidence shows that the veteran first developed asthma during service. The veteran has reported continuous symptoms of asthma since service, and asthma was identified on VA examination in October 1990. The Board concludes that the preponderance of the evidence is in favor of a conclusion that chronic bronchial asthma was incurred in service. Accordingly, service connection for that disability is granted. II. Atopic Dermatitis As was noted above, service connection was granted for atopic dermatitis in an October 1990 rating decision. Subsequently, a 10 percent evaluation was granted for that disability from the effective date of service connection in July 1990. The veteran's dermatitis has been rated by analogy to eczema under Diagnostic Code 7806; 38 C.F.R. § 4.118 (1993). Under that diagnostic code, a 10 percent evaluation is for application where the disability involves an exposed or extensive area, and there is exfoliation, exudation, or itching. A 30 percent evaluation is for application where there is constant exudation or itching, extensive lesions, or marked disfigurement. The veteran did complain of continuous itching on VA examination in January 1991, and was seen later that month at a VA outpatient clinic, when he requested hospitalization for dermatitis. However, complaints of itching have not been documented elsewhere in the record, and it cannot be concluded that he in fact experiences continuous itching. On examination in January 1991, and in VA outpatient treatment records, there have been no findings of exudation, extensive lesions, or marked disfigurement. A review of color photos of the veteran taken for VA examination in January 1991, also does not show any of these findings. The veteran has consistently been found to have a dry scaly rash over a wide area of his body, most recently on examination for clothing allowance in November 1991. However these findings do not meet, or approximate, the criteria for an evaluation in excess of 10 percent under Diagnostic Code 7806. Rather, they seem closer to the criteria for a 10 percent evaluation, namely, involvement of an extensive area with some itching and exfoliation. In reaching its conclusions in this case the Board has considered all of the provisions of Chapters 3 and 4 of 38 C.F.R. (1993). The Board has specifically considered the provisions of 38 C.F.R. § 3.321, pertaining to extra-schedular evaluations. However, the veteran's disability has not required frequent periods of hospitalization, or been shown to markedly interfere with employment, beyond the level contemplated by his current schedular evaluation. Accordingly, the Board has found that his disability picture, is not so unusual as to render impractical the application of the regular schedular criteria. The Board has considered the provisions of 38 C.F.R. § 4.7, which provides for assignment of the next higher evaluation where the disability picture more closely approximates the criteria for the next higher evaluation. As discussed above, the veteran's atopic dermatitis does not more closely approximate the criteria for the next higher evaluations. The Board has been unable to find a basis under any other regulation, which would permit the allowance of an increased rating for the veteran's atopic dermatitis. ORDER Service connection for bronchial asthma is granted. An increased rating for atopic dermatitis is denied. LAWRENCE M. SULLIVAN 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.