Citation Nr: 0000177 Decision Date: 01/05/00 Archive Date: 12/28/01 DOCKET NO. 98-01 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an increased evaluation for service- connected epidermophytosis of the hands and feet, currently evaluated as 50 percent disabling. 2. Entitlement to special monthly pension based on the need for regular aid and attendance or being housebound. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Johnson, Associate Counsel INTRODUCTION The veteran served on active duty from February 1945 to August 1946. This matter came to the Board of Veterans' Appeals (Board) from an August 1997 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which denied the claim of entitlement to an increased rating for service-connected skin condition of the hands and feet, and the claim of entitlement to special monthly pension. A notice of disagreement was submitted in October 1997, and a statement of the case was issued that November. In December 1997, VA received the veteran's substantive appeal. In his substantive appeal, the veteran raised the issue of entitlement to individual unemployability. It was noted that action on that issue would be deferred pending the return of folder to the RO. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained by the RO. 2. The veteran's service-connected epidermophytosis of the hands and feet, is manifested by recurrent breakouts of rashes on the hands, feet and face, which is comparable to eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. 3. The service-connected epidermophytosis of the hands and feet does not present an exceptional or unusual disability picture, with related factors such as marked interference with employment or frequent periods of hospitalization, such as to render impractical the application of the regular schedular standards. 4. The objective evidence establishes that the veteran is unable to tend to personal care due to tremors and respiratory conditions, and is unable to feed himself due to tremors. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 50 percent for service-connected epidermophytosis of the hands and feet have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.20, 4.118, Diagnostic Codes 7800, 7801, 7806 (1999). 2. The criteria for an award of special monthly pension based on the need for regular aid and attendance of another person have been met. 38 U.S.C.A. §§ 1502(b), 1521(d) (West 1991); 38 C.F.R. § 3.352(a) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The service medical records reflect a history of skin eruptions on the legs and arms for long periods of time, as well as the treatment and diagnosis of dermatophytosis of the feet. The records also show that he was treated for dermatitis of the hands. In September 1946, the veteran was granted entitlement to service connection for dermatitis of the feet. The disability was rated as 10 percent disabling, effective August 18, 1946. The veteran was afforded VA examinations in the 1940s which reflect the diagnosis of dermatitis of the feet. In 1947, it was noted that the condition was present on his hands. In a November 1947 decision, the RO reduced the rating to noncompensable. An effective date of January 26, 1948, was assigned. When the veteran was hospitalized in 1950 for treatment of a gastrointestinal disorder, it was noted that there was no evidence of skin involvement of the feet. In 1957, VA received notes from Dr. Edward M. Cox regarding the status of the veteran's skin condition. VA records show that he was hospitalized in 1957 upon complaints of infection of the feet and hands of three weeks' duration. One of the final diagnoses reported was epidermophytosis of the hands and feet, bilateral. It was noted that the status of this service-connected disability was that it was treated and improved. The veteran was also diagnosed as having septic thrombophlebitis of the right arm, which the examiner noted was treated and improved. In an October 1957 decision, the RO assigned a compensable rating of 10 percent, effective July 12, 1957. At that time, the disability was characterized as epidermophytosis of the hands and feet with septic thrombophlebitis of the right arm. At the VA examination in 1959, it was noted that the veteran had epidermophytosis of the hands and feet, and that it was a recurrent condition subject to remissions and exacerbations. It was also noted that he had a bout of thrombophlebitis but that he did not have it at that time. In April 1971, the veteran was treated for dyshidrosis of the feet. At a VA examination of August 1971, the examiner diagnosed trichophytosis of the palms and soles and noted that the condition was moderately severe. In a September 1971 decision, the RO assigned an increased rating of 30 percent for epidermophytosis of the hands and feet. The rating was effective as of April 30, 1971. The diagnosis of epidermophytosis of the hands and feet was also noted on VA examination in 1976. At that time, the condition was considered severe. In a 1977 note, Dr. Cox opined that due to his skin condition, the veteran would not be able to engage in his usual work as a mechanic. At a VA examination of 1977, the examiner reported a diagnosis of dermatitis eczematoid of the palms, soles and legs. The examiner commented that the condition was severe. In a January 1978 decision, the RO determined that a 50 percent rating was warranted for epidermophytosis of the hands and feet. It was noted that the condition had also been diagnosed as dermatitis eczematoid. The rating was considered effective as of November 21, 1977. The veteran was afforded a VA examination in November 1979. The examiner observed numerous vesicular lesions on the feet and similar lesions on the right leg. There were some nail changes and defects as a result of the skin problem. It was noted that there were blisters on the hands, feet and legs. The examiner diagnosed epidermophytosis of the hands, forearms, feet and legs. The condition was noted to be moderately severe. At a VA examination of May 1981, the hands and feet were red and scaly and studded with vesicular lesions. The examiner diagnosed epidermophytosis of the hands and feet, and noted that it was moderately severe. Private medical records, dated for a period between 1982 and 1994, show that the veteran was treated for respiratory problems and carcinoma of the right lung, and that he underwent a right pneumonectomy. In those records, there are references to the veteran's skin condition. In February 1987, an examiner observed a rash on the left leg. In November 1987, it was noted that his hands and face were broken out. The examiner suspected that the condition was not viral given the creams used for his hands and figured that the condition was eczema. A review of the claims file indicates that examinations have been scheduled pursuant to the claims on appeal here, but that the veteran has not been able to appear for the examinations due to travel restrictions related to his health. It appears that there was an attempt to arrange an examination on a contract basis but that it could not be ordered. Therefore, statements from his private physician, Dr. Stephen L. Dygert, were accepted in lieu of VA examinations. In a September 1992 report, which is somewhat illegible in certain places, Dr. Dygert reported that the veteran's individual complaints included tremors, rash and lumbar spine pain which appears to be considered secondary to fractures. From the report, it appears that Dr. Dygert noted that the diagnosed disorders involve tremors, chronic obstructive pulmonary disorder, lumbar spine difficulties and a history of lung cancer. It was found that he was able to leave home on a daily basis with the help of his wife. He was able to walk 100 feet without assistance due to shortness of breath, and he used a cane for locomotion. He needed help eating and writing due to poor grip, and there was mention of the tremor. It was also noted that there was some problem with balance, which affected his ability to perform self-care, ambulate or travel beyond the premises of his home. In May 1996, the RO granted the claim of entitlement to nonservice-connected pension. A 60 percent rating was assigned for right pneumonectomy, status post lung cancer, and a 30 percent rating was assigned for chronic lung disease. In a May 1997 report, which is somewhat illegible in certain places, Dr. Dygert reported that the veteran complained of lumbar pain, tremor, and shortness of breath due to a right pneumonectomy. The diagnosed disabilities were considered to be the "same." Regarding restrictions on ambulation, it appears that Dr. Dygert mentioned that the veteran needed the help of his wife, and that the veteran may have had a problem with his ears. He could not walk without assistance, and it was noted that he used a cane for locomotion. Due to the tremor, he needed help with bathing and personal care. It was mentioned that his problems involved shortness of breath secondary to the chronic obstructive pulmonary disorder and right pneumectomy as affecting his ability to perform self care, ambulate or travel beyond the premises of his home. In a June 1997 report, a nurse practitioner reported that she spoke with Dr. Dygert the previous day regarding one of the veteran's requests, and the physician responded that he did not have records of treating the veteran for septic thrombophlebitis. He did have a history of an eczema type rash, for which he continued to be treated. It was noted that the veteran's wife reported that she had been unable to get the veteran to a VA facility for his examinations due to his housebound status and that it was difficult for her. Therefore, further exploration of the veteran's condition was not possible. In a statement received in April 1998, Dr. Dygert reported that the veteran was treated on various dates from July 1982 to April 1998. Dr. Dygert reported that the veteran had a persistent rash on the feet, hands and face, and that the condition dated back to his period of service. Dr. Dygert saw him for the condition over the years, and the veteran had also gone to a dermatologist. The condition was treated with Lidex cream for the feet, triamcinolone cream for the hands and 1% hydrocortisone on the face. Dr. Dygert commented that this took a fair amount of time and effort on the veteran's part, but with diligence he kept it under control. II. Legal Analysis The Board finds that the veteran's claims are well-grounded. 38 U.S.C.A. § 5107(a). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter "the Court") has held that, when a veteran claims that a service- connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed and that VA has fulfilled its duty to assist the veteran as mandated by 38 U.S.C.A. § 5107(a) and 38 C.F.R. § 3.103(a). Increased Evaluation for Epidermophytosis of the Hands and Feet Disability evaluations are based upon the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration is to be given to all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Service connection is currently in effect for epidermophytosis of the hands and feet, rated as 50 percent disabling under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7806. Diagnostic Code 7806 contemplates eczema, and the veteran's condition is rated by analogy. See 38 C.F.R. § 4.20. Under Diagnostic Code 7806, a maximum rating of 50 percent is assigned for eczema with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnant. The Board has considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After a careful review of the available diagnostic codes and the medical evidence of record, the Board finds that diagnostic codes other than 7806, do not provide a basis to assign an evaluation greater than the 50 percent rating currently in effect. It can be argued that the commentary regarding the appearance of a skin condition to the veteran's face, or even the fact that it is on his hands, is the equivalent of disfiguring scars of the head, face or neck as provided by Diagnostic Code 7800, which allows an evaluation of 50 percent to be increased to 80 percent when in addition to tissue loss and cicatrization there is marked discoloration, color contrast, or the like. The evidence of record does not indicate that the veteran's skin condition is comparable to disfigurement, and, even if it did, that it involved marked discoloration, color contrast or the like as required for a higher rating under Diagnostic Code 7800. Under Diagnostic Code 7801, third degree burns are rated as 40 percent disabling for an area or areas exceeding 1 square foot, and provides that separate ratings can be assigned for widely separated areas, such as two or more extremities, and then combined. In this case, the evidence of record does not indicate that the skin condition which appears on all four extremities are considered comparable to third degree burn scars. Therefore, this diagnostic code is not applicable. Also, the veteran's skin condition has not been described as similar to active tuberculosis luposa, which would warrant a total rating of 100 percent under Diagnostic Code 7811. It is noted that at one point the characterization of the veteran's disability included septic thrombophlebitis of the right arm. However, when he was treated for that condition in the 1950s, the report specifically indicated that the service-connected disorder treated was epidermophytosis of the hands and feet. Also, his own physician, Dr. Dygert, reported that he did not treat the veteran for that condition. Therefore, that condition is not part of the disability at issue, and any diagnostic codes that would apply for such a disorder will not be considered here. As the veteran currently receives the maximum rating for his service-connected skin disorder, the issue of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is before the Board. In Floyd v. Brown, 9 Vet. App. 88 (1996) the Court held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1), in the first instance. Also, VA's General Counsel has held that the question of entitlement to a total rating based on an extraschedular rating is not inextricably intertwined with the question of entitlement to a higher schedular rating, and that the proper method of returning the case to the RO for further action is by remand rather than referral. VAOPGCPREC 6-96. In the rating action on appeal here, however, the RO determined that the evidence did not demonstrate that the requirements for extraschedular consideration had been met. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Other than the hospitalization and treatment in July 1957 for epidermophytosis and septic thrombophlebitis of the right arm, the records do not indicate or contain references to frequent hospitalization for treatment of his service- connected epidermophytosis. Regarding employment, the evidence of record does include the 1977 note from Dr. Cox. In that note, Dr. Cox did report that the veteran would not be able to engage in his usual work as a mechanic due to his skin condition, and his commentary was taken into consideration and mentioned in the January 1978 rating action which reflects the grant of an increased rating of 50 percent. Therefore, any interference with employment has been considered, and the 50 percent rating assigned for this disability contemplates such interference. Thus, the RO correctly declined to forward the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service for consideration of an extraschedular rating. Essentially the veteran asserts that the condition causes severe pain in his hands and feet, which interferes with his ability to walk and perform other tasks. Dr. Dygert, however, reported that the veteran's skin condition was under control given his diligent use of medication. Furthermore, Dr. Dygert attributed the veteran's physical limitations to disorders other than the skin condition. Therefore, overall the evidence does not show that a rating greater than 50 percent is warranted for service-connected epidermophytosis of the hands and feet. Here, the preponderance of the evidence is against the claim of an increased rating for service-connected epidermophytosis. Therefore, the benefit of the doubt doctrine contemplated by 38 U.S.C.A. § 5107 (West 1991) does not apply. Special Monthly Pension Increased pension is payable to a veteran by reason of need for aid and attendance or by reason of being housebound. 38 U.S.C.A. § 1521(d); 38 C.F.R. § 3.351(a)(1). A person shall be considered to be in need of regular aid and attendance if such person is (1) a patient in a nursing home or (2) helpless or blind, or so nearly helpless or blind as to need or require the regular aid and attendance of another person. 38 U.S.C.A. § 1502(b). Regulations provide that the following will be considered in determining the need for regular aid and attendance: inability of the veteran to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability of the veteran to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the veteran from hazards or dangers incident to his daily environment. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to be in need of regular aid and attendance, not that there be a constant need. Determinations that a veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the veteran's condition is such as would require him or her to be in bed. It must be based on the actual requirement of personal assistance from others. 38 C.F.R. §§ 3.351(c), 3.352(a) In this case, the veteran has neither contended, nor does the medical evidence show, that he is legally blind. Also, it is clear that the veteran, who reportedly resides in his own home, is not confined to a nursing home because of mental or physical infirmity related to his specific medical problems. The veteran's private physician, however, has reported that the veteran needs assistance with his personal care, including feeding and bathing, due to tremors and his respiratory problems The inability of the veteran to tend to personal care such as dressing and undressing or keeping himself presentable, as well as the inability to feed himself due to upper extremity weakness, has been demonstrated. Therefore, these criteria are applicable and support the veteran's claim for special monthly pension benefits based on the need for regular aid and attendance of another person. In light of the above, the Board finds the preponderance of the evidence favors the veteran's claim of special monthly pension based on the need for regular aid and attendance of another person. Therefore, the appeal is granted. As special monthly pension based on the need for regular aid and attendance is a greater benefit than special monthly pension by reason of being housebound, the veteran's claim for benefits based on that basis is moot. ORDER Entitlement to a rating greater than 50 percent for service- connected epidermophytosis of the hands and feet has not been established, and the appeal is denied. Entitlement to special monthly pension based on the need for regular aid and attendance of another person has been established, and the appeal is granted. JAMES L. MARCH Acting Member, Board of Veterans' Appeals