Citation Nr: 0005988 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 95-09 484 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California THE ISSUES 1. Entitlement to an evaluation in excess of 30 for hemorrhoids with impairment of sphincter control. 2. Entitlement to an increased (compensable) evaluation for tinea pedis. 3. Entitlement to an increased (compensable) evaluation for right groin scar, removal of wart. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, and spouse ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active military service from May 1953 to April 1958. His awards and decorations include the Korean Service Medal but none specific to combat. The veteran provided testimony before a traveling member of the Board, sitting at Los Angeles, California, in March 1997. The Board of Veterans' Appeals (Board) in a determination in August 1997 addressed multiple service connection issues, and remanded for additional development the issues of increased rating from hemorrhoids, tinea pedis with hyperhidrosis, and scar of the right groin secondary to wart removal. The case has been returned to the Board for further appellate consideration in regard to the increased rating issues noted. In 1999 the veteran raised the issues of service connection for disability due to residuals of cold injury to the ear, hands and feet; residuals of a gunshot wound, right inner thigh; residuals of back, neck, and head injuries; bilateral eye disability; hypertension; and stomach disorder. These issues were addressed in an August 1999 rating action, and the veteran was advised of the determinations and his appellate right later that same month. There is no record of a notice of disagreement in file (NOD), and these issues are not before the Board at this time. 38 C.F.R. § 20.200, 20.201 (1999); Buckley v. West, 12 Vet. App. 76 (1998). The veteran has repeatedly reported that he was told that his service medical records were destroyed in a fire, and therefore any service medical records must be fabricated. The Board must point out that there was a fire at the National Personnel Records center in 1973 and some records were destroyed; however, the veteran filed a claim for disability benefits in 1958 and service medical records were received in 1959, and have been part of his claims file since that time. These records were the basis for his award of service connection for hemorrhoids in 1959, and service connection for tinea pedis and scar, removal of wart, in 1965. The Board can find no records that do not appear authentic. In November 1997 the veteran requested copies of his service and VA medical records. These were provided in July 1998. The veteran has had the opportunity to review his file and if he has any objective evidence of fabrication of service medical records he should immediately bring such evidence forward for review and investigation. The veteran has also reported on multiple occasions that he was awarded a 10 percent rating and this was shown in a civil service preference letter to the Post Office in the 1960's. The record shows that a civil service preference letter was prepared for the veteran in August 1965, and that the memorandum therein was to the effect he was service connected for hemorrhoids, "discernible [sic] but less that 10% degree." Statements made by the veteran in the course of this appeal have been construed by the Board as a claim for service connection for warts. He reports having warts in service and post-service, and a claim for service connection for warts is not intertwined with the issue on appeal, as the veteran was only service-connected for a scar incidental to wart removal, and the rating for the scar can be decided without consideration of a claims for warts. The RO's attention is directed to the veteran's claim for action as appropriate. FINDINGS OF FACT 1. The service-connected hemorrhoids with impairment of sphincter control are principally manifested by wearing of pads for ongoing slight leakage with occasional involuntary bowel movements. 2. The service-connected bilateral tinea pedis with hyperhidrosis is principally manifested by ongoing treatment for blisters/fungal infection, debridement of nails and occasional lesions. 3. The service-connected right groin scar, removal of wart, is asymptomatic. CONCLUSION OF LAW 1. An evaluation in excess of 30 percent for hemorrhoids with impairment of sphincter control is not warranted. 38 U.S.C.A. § 1155, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 4.114 Diagnostic Codes 7336, 7332 (1999). 2. A 10 percent evaluation for bilateral tinea pedis with hyperhidrosis is warranted. 38 U.S.C.A. § 1155, 5107(a)(b) (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.7, 4.118 Diagnostic Codes 7813, 7806 (1999). 3. A compensable evaluation for right groin scar, removal of wart, is not warranted. 38 U.S.C.A. § 1155, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 4.118 Diagnostic Codes 7804, 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION An allegation of increased disability establishes a well- grounded claim. Proscelle v. Derwinski, 2 Vet. App. 629 (1992); See also Jones v. Brown, 7 Vet. App. 134 (1994). When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Hemorrhoids with Sphincter Control Impairment An RO decision awarding a higher rating but less than maximum available benefit does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35 (1993). Factual Background. The veteran was treated for hemorrhoids in service. A rating action in May 1959, granted service connection for hemorrhoids, rated noncompensable under Diagnostic Code 7336. VA examination in April 1965 showed perianal tag with tenderness on the left side of the anal canal, otherwise the examination was negative. The veteran filed a claim, dated November 22, 1993, to include an increased rating for his service-connected hemorrhoids. VA hospitalization for a disability not at issue, in September and October 1994, made no reference to hemorrhoids. Private and VA clinical records dated in 1996 did not reflect ongoing treatment for hemorrhoids. VA examination in September 1996 revealed a current weight of 282 pounds, down from 305 pounds in the last year. The veteran reported surgery for hemorrhoids at a private hospital in 1970. He was positive for bleeding and soiling. It was noted that he wore a pad, and was incontinent to diarrhea occasionally. There was no evidence of dehydration or malnutrition, or anemia. There was positive fecal leakage and the frequency of the episodes was said to be daily. The diagnosis was chronic hemorrhoids. A rating action in January 1997 confirmed and continued a noncompensable evaluation for hemorrhoids, and the rating memorandum was to the effect there was no description of hemorrhoid on the current examination and the examiner did not state that the bleeding and soiling were due to the hemorrhoids. In hearing testimony in March 1997, the veteran reported that when examined in September 1996 he had bleeding, protruding hemorrhoids. He noted wearing a pad all of the time to keep from leaking into his shorts, and receiving treatment at the VA. Transcript (T.) pp. 36, 37 and 38. Per the August 1997 remand, the veteran was provided official examination in January 1999. The examiner noted that the veteran was a "very poor historian." It was recorded that the veteran reported intermittent hemorrhoid bleeding of two tablespoons or less, and sometimes black stools. He also indicated he experienced thrombosed hemorrhoids approximately 3 times a year, with protruding hemorrhoid all the time. Bleeding, itching and pain were reported to be intermittent and treated with hydrocortisone cream and Vaseline on as needed basis. Physical examination showed the veteran to be 68 3/4 inches in height, and weigh 302 pounds. Rectal examination revealed the rectal sphincter tone to be lax. There was evidence of fecal leakage present. The size of the lumen was within normal limits and there was not evidence of fissure formation. There was evidence of internal and external hemorrhoids, measuring 1/2 inch at 12:00, 3:00, 6:00, and 9:00 o'clock. There was no evidence of thrombosis or bleeding at the time of examination. The diagnosis was hemorrhoids, with notation of the subjective complaints, and objective findings, including lax sphincter tone, evidence of fecal leakage, and internal and external hemorrhoids. The subjective complaints included difficulty holding stools on a daily basis, necessitating use of pads, Tucks, and toilet paper. Received in July 1999 were copies of VA clinic records from 1995 to 1999. These records do not reflect any ongoing treatment for hemorrhoids. There was a complaint of hemorrhoids in January 1999, and in June it was noted that hemorrhoids were swollen, sore, and bleeding a little. By rating action in February 1999, a 30 percent evaluation was assigned for hemorrhoids with impairment of sphincter control, Diagnostic Codes 7336, 7332, effective from November 22, 1993. In a statement in March 1999, the veteran maintained that a 60 percent evaluation should be assigned for his serious disabling hemorrhoids. In November 1999, the representative argued that the VA examination was inadequate. Analysis Hemorrhoids, external or internal, with persistent bleeding and with secondary anemia, or with fissures, warrants a 20 percent evaluation. Large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, a 10 percent rating is assigned. Mild or moderate hemorrhoids are assigned a noncompensable rating. 38 C.F.R. § 4.114, Diagnostic Code 7336 (1999). Where there is impairment of sphincter control, with complete loss of sphincter control, a 100 percent rating is assigned. With extensive leakage and fairly frequent involuntary bowel movements, a 60 percent rating is warranted. When there is occasional involuntary bowel movements, necessitating wearing of pad, a 30 percent evaluation is assigned. Constant slight, or occasional moderate leakage is given 10 percent rating, and sphincter impairment healed or slight, without leakage is noncompensable. 38 C.F.R. § 4.114 Diagnostic Code 7332 (1999). The maximum rating under Diagnostic Code 7336 is 20 percent, and the veteran currently has a 30 percent evaluation for his hemorrhoids, with impairment of sphincter control. Clearly the only path for an increased evaluation is via Diagnostic Code 7332, governing impairment of sphincter control. The basis for evaluating the sphincter impairment is the information provided by the veteran in the September 1996 and January 1999 examinations, the objective findings on those examinations and the outpatient treatment records. In September 1996 he reported daily fecal leakage, and occasional diarrheal incontinence. The January 1999 report shows he described difficulty holding his stools on a daily basis, necessitating the use of pads, Tucks and toilet paper. He also described symptoms of bleeding, pain and itching which were intermittent. The Board must point out that his subjective reports are not clearly of frequent episodes of involuntary bowel movements. Moreover, the extensive outpatient clinic records over this period do not provide support for these subjective descriptions, and definitely do not document frequent episodes of involuntary bowel movements. The examiner further noted that the claimant is regrettably a "very poor historian." Accordingly, in view of the recognized limitation of the veteran's ability to report his history, the lack of objective support for his subjective descriptions in the outpatient treatment records, and the lack of objective findings on the most recent examinations linked to frequent involuntary bowel movements, the Board concludes that this manifestation is not shown. The recent examination does show evidence of some, but not extensive, fecal leakage. Constant slight, or occasional moderate leakage only warrants a 10 percent rating. The RO assigned a 30 percent evaluation which requires occasional involuntary bowel movements, necessitating wearing of pad. In sum, the record does not show that the veteran experiences extensive leakage and fairly frequent involuntary bowel movements, for assignment of a 60 percent rating. The Board has noted the arguments raised by the representative as to the adequacy of the VA examination. The Board must point out that the inability to draw blood is a moot point since the veteran is already assigned a rating in excess of that provided even if anemia was documented. As to the other alleged defects, the Board must observe that the current findings address the schedular criteria under the relevant codes for rating the service connected disability. The argument that they do not address factors outside those codes, such as the need for a colostomy, does not show the examination is inadequate for rating purposes. In the light of the above, the Board finds the clear weight of the most probative evidence is against the claim. Accordingly, the benefit of the doubt doctrine is not for application because the overwhelming weight of the evidence is against the claim. Tinea Pedis with hyperhidrosis When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1999) The diagnostic code numbers appearing opposite the listed ratable disabilities are arbitrary numbers for the purpose of showing the basis of the evaluation assigned and for statistical analysis in the Department of Veterans Affairs, and as will be observed, extend from 5000 to a possible 9999. Great care will be exercised in the selection of the applicable code number and in its citation on the rating sheet. No other numbers than these listed or hereafter furnished are to be employed for rating purposes, with an exception as described in this section, as to unlisted conditions. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number will be "built-up" as follows: The first 2 digits will be selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be "99" for all unlisted conditions. This procedure will facilitate a close check of new and unlisted conditions, rated by analogy. In the selection of code numbers, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined. With diseases, preference is to be given to the number assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. Thus, rheumatoid (atrophic) arthritis rated as ankylosis of the lumbar spine should be coded "5002-5289." In this way, the exact source of each rating can be easily identified. In the citation of disabilities on rating sheets, the diagnostic terminology will be that of the medical examiner, with no attempt to translate the terms into schedule nomenclature. Residuals of diseases or therapeutic procedures will not be cited without reference to the basic disease. 38 C.F.R. § 4.27 (1999). When there is a question of which of two evaluations shall be applied, 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). Dermatophytosis (code 7813) of the feet (tinea pedis) is rated under the code for eczema (code 7806). Eczema with exudation, or itching constant, extensive lesions, or marked disfigurement warrants a 30 percent evaluation. With exfoliation, exudation or itching, if involving an exposed surface or extensive area, a 10 percent rating is assigned. With slight, if any, exfoliation, exudation or itching, if on a non exposed surface or small area, a 0 percent rating is assigned. 38 C.F.R.§ 4.118 Diagnostic Codes 7899, 7813, 7806 (1999). Factual Background The veteran was treated for tinea pedis with hyperhidrosis in service. When examined by the VA in April 1965, he reported that he had skin trouble on the feet only. On the plantar surface of the feet there was a mild hyperhidrosis. He had some maceration and moist scaling between the third and fourth and fourth and fifth toes on both feet. There was no evidence of secondary infection. The pertinent diagnoses were hyperhidrosis plantare, and tinea pedis. When the VA examined him in September 1996, no tinea pedis or dyshidrosis was noted. In hearing testimony in March 1997, the veteran reported that the skin problem was not all athlete's feet, that it involved his hand, ears, groin, and head, and that other members of the family had caught it, T. pp. 38, 39. VA outpatient clinic records from 1995 to 1999 reveal ongoing treatment for diabetes mellitus. In March 1997 the veteran reported blisters on his feet and being unable to exercise. He had been to a podiatrist. Examination in March showed dry ruptured blisters on both feet without erythema. The assessment was blisters/fungal infection. A follow-up in May was noted. In July 1997 he was treated for dry ruptured blisters on both feet, without erythema. The assessment was as before. In September 1997the blisters/fungal infection was much improved. Examination in February 1998 showed no ulceration on feet. There was bilateral edema in the lower extremities. In March 1998 his feet "look great." In May 1998 he complained of blisters on his feet and soreness bilaterally. Examination showed superficial ulceration of the medical surface of the right toe and yellowish discoloration suggestive of fungal infection. The left foot showed 2 small (.5 mm each) yellowish lesions. The assessment was diabetic foot infection with fungus, possibly also bacterial. The treatment plan was "[S]ame for diabetes." He was seen by a podiatrist and Lamisil ointment for 2 weeks was prescribed. Clinical records for July 1998 show an assessment of blisters/fungal infection much improved. Podiatry consult was requested. In October 1998 his "foot look good no lesions." Also in October there was podiatry-diabetic POD visit, with debridement of mycotic toenails bilaterally. There was renewal of Lamisil cream for 1 month, "rx" for tinea pedis. A visit in December 1998 included debridement of hypertrophic nails. It was noted that the tinea pedis was much improved, but still remained at lateral aspect of right foot. The Lamisil cream was renewed. In January 1999 the veteran complained of skin problems on his feet and back. The assessment in January and February 1998 was blisters/fungal infection much improved. Hypertrophic nails were debrided bilaterally in March 1998, and it was noted that the tinea pedis was much improved on Lamisil. The veteran stated in April 1998 that his blisters, fungal infection were improved. In June 1999 there was debridement of hypertrophic nail on all ten digits, both feet. He was to return in two months. The veteran was provided official VA examination in January 1999. At that time it was recorded that he reported constant symptoms involving his feet since service, with intermittent worsening on an interval of every 3 months, lasting 3 to 4 weeks or longer. The symptoms were pain, rash, blisters, oozing, pus, and breaking of the skin. Physical examination showed evidence of tinea pedis between the toenails as well as mildly hyperkeratotic lesions on the bottom of the feet on the plantar aspect. There was no evidence of exfoliation, ulceration or crusting. The diagnosis was tinea pedis with hyperhidrosis. In a statement in March 1999, the veteran reported that his tinea pedis in intermittently worse on an interval of every 3 months, lasting approximately 3 to 4 weeks or longer, and that any time he wears shoes all day the problem flares up and treatment begins again. He reported that itching was present all over the surface of the affected areas of his skin, as documented. Analysis The record clearly shows that the veteran receives on-going treatment for his service-connected tinea pedis. While it appears that his diabetes mellitus might be a complicating factor, as indicated by the May 1998 observation of diabetic foot infection with fungus, possibly also bacterial, there has not been any medical determination delineating any diabetic foot problem and the tinea pedis. Therefore, the Board must rate the tinea pedis as reflected in the clinical records. The tinea pedis certainly does not warrant a 30 percent evaluation, as there is no reported exuded fluid, constant itching, extensive lesions, or marked disfigurement. On the other hand he does have frequent blisters on both feet, and occasional lesions sometimes involving both feet, requiring ongoing medication. There is also the nail debridement that is ongoing, and it has not been shown to be other than a manifestation of the tinea pedis. The ongoing bilateral foot fungal problem, on an overview, appears to be more than slight, and while on non-exposed surface, the involvement of both feet raises the question of what comprises a small area. Both feet certainly do not reach the boundary of an extensive area but the bilateral involvement can be said to be more than "small." When there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating, and in this instance, the Board finds that a 10 percent rating is in order for the bilateral tinea pedis. Right Groin Scar, Wart Removal Superficial, tender and painful scars, on objective demonstration, warrant a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7804 (1999). Other scars rate on limitation of function of part affected. 38 C.F.R. § 4.118, Diagnostic Code 7805 (1999). Factual Background Service medical records dated in February 1958 noted warts in the groin area, and a wart removed from the right groin in March 1958. VA examination in April 1965 noted a scar on the right forearm and another over the right medial superior aspect of the knee. There were no complaints or findings relative to the right groin or scar therein. A rating action in April 1965 granted service connection for groin scar, removal of wart, rated noncompensable, code 7805, based on removal of verruca warts in service in 1958. The veteran, in VA Form 1-9, dated in September 1995, referred to problems to include "scars." On examination for scars during VA examination in September 1996, it was noted that the veteran reported a bullet wound in 1953, treated by medics in the field. There was no keloid formation and no inflammation or swelling. There was no evidence of pain and the bullet wound in the right leg appeared to be without limitation in function for that part of the leg. There was no reference to the right groin. The diagnoses included bullet wound scar, right leg, well-healed no clinical sequelae. In VA Form 9, dated in February 1997, the veteran reported "[S]cars in leg and head received in Korea." Hospitalization in 1958 was noted. The veteran, in hearing testimony in March 1997, reported a superficial bullet wound above the right knee, on the inside, T. pp. 13-15. When asked if the right groin scar was still there, he responded, "[W]ell-it never stopped growing. They just keep coming back, I just had one took off." He reported having a wart removed in 1991 or 1992, in the same groin area, T. pp. 39 and 40. VA clinic records from 1995 to 1999 do not reveal any complaints or treatment for a groin scar. Official examination in January 1999, noted wart removal from the left inguinal area. Physical examination of the inguinal area was difficult due to the veteran's obesity. Scaring in the "left" inguinal area was noted. There was evidence of scar formation from previous removal of the skin warts measuring approximately 1 cm (centimeter) by .5 cm on the medical aspect of the inguinal area. The scar was slightly elevated, pale, and non-tender. There was no adherence, ulceration or break down of the skin. No inflammation, edema, keloid formation, disfigurement, or limitation by the scar was show, and there was no underlying tissue loss. The diagnosis was groin scar, secondary to wart removal. The veteran, in a statement in March 1999, in regard to the "inguinal wart/scar" this was evaluated and a "MD tender and start of recurrent formation of underlying warts." Analysis There are two preliminary problems that must be addressed as to this issue. The first is that there is no documentation of a scar in the right groin. The second is the veteran's assertion that he has continued to have warts, and wart removal since service. Essentially he wants the "wart" problem evaluated. This has been addressed in the Introduction. The issue before the Board is evaluation of a scar. As to any right groin scar, service records note wart removal from the "right" groin area. There is no description of any residual scar. Examination in 1965 did not show any right groin area scar. The veteran has never been treated for any right groin scar, and clinical records do not reflect any right groin scar complaints or findings. He did not specifically affirm a right groin scar in hearing testimony in 1997, and in fact, when examined in 1999, he referred to warts and wart removal in the left groin, with warts removed after service. The examination in 1999 showed a left groin scar that was asymptomatic, and the examiner did not relate any right groin scar or findings. In the inception of this appeal the veteran never specifically referred to any right groin scar increasing in disability. He usually referred to scars in general, and warts in general. In March 1999, he did not refer to "right" groin scar, only that an inguinal wart/scar caused tenderness and discomfort. The objective evidence of record does not support his oblique reference to a doctor noting tenderness, and he does identify this doctor. Further, tenderness and discomfort due to scaring in the groin area has not been objectively demonstrated. The point is that right groin scar disability has not been a contention advanced by the veteran, and there is no objective evidence of any disability due to a right groin scar in the record. However, even if it were assumed that the service-connected scar is really in left groin, that scar is symptomatic, does not interfere with the function of the left leg, and does not warrant a compensable evaluation. Given the above fundamental facts, the benefit of the doubt doctrine is not for application because the overwhelming weight of the evidence is against the claim. ORDER A 10 percent evaluation for bilateral tinea pedis with hyperhidrosis is granted, subject to the laws and regulations governing the payment of monetary benefits. An increased evaluation for hemorrhoids with impairment of sphincter control is denied. A compensable evaluation for right groin scar, removal of wart is denied. Richard B. Frank Member, Board of Veterans' Appeals