Citation Nr: 0005794 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 97-06 511 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased evaluation for condylomata acuminata, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. P. Simpson, Associate Counsel INTRODUCTION The appellant served on active duty from November 1972 to November 1975. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 1996 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision, the RO continued the 10 percent disability evaluation for condylomata acuminata. The Board notes that the appellant had indicated that he wished to have a hearing before a Board Member at the RO. The appellant was notified of the January 10, 2000, hearing in a December 1999 letter; however, he did not appear for the hearing. Therefore, there are no due process concerns. Review of the record reveals that the RO expressly considered referral of the case to the Chief Benefits Director or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award 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. The United States Court of Appeals for Veterans Claims (the Court) has 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; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has reviewed the record with these mandates in mind and finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). FINDING OF FACT Condylomata acuminata is currently manifested by brown and pedunculated lesions on the penis and anus. CONCLUSION OF LAW Condylomata acuminata is no more than 10 percent disabling. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4, Diagnostic Code 7806 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant contends that the current 10 percent disability evaluation for his service-connected condylomata acuminata does not contemplate the severity of his skin disability. The Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim for an increased evaluation for condylomata acuminata is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). That is, his assertion that his service-connected disability has worsened raises a plausible claim. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The appellant has been recently examined and his medical records have been obtained. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). All relevant facts on this issue have been properly developed and the duty to assist has been met. 38 U.S.C.A. § 5107(a). Service connection for condylomata acuminata was granted by means of a February 1981 rating decision and assigned a 10 percent disability evaluation. The appellant underwent a VA examination in May 1996. He reported that he last had lesions approximately two years previously. The VA examiner stated that the appellant had brownish and pedunculated lesions on his penis and anus. The VA examiner stated that there were no nervous manifestations. The VA examiner stated that pictures were taken and were attached to the examination report. The diagnosis entered was condylomata acuminata. In an October 1996 letter, Dr. Carol Fujiyoshi stated that the appellant's wife was being treated for condyloma and she listed several dates. In a January 1997 note, Dr. William M. Milam stated that the appellant had rectal condylomas and that he needed general surgery. Service-connected disabilities are rated in accordance with a schedule of ratings that are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). The appellant's service-connected condylomata acuminata is rated by analogy to eczema. A 10 percent evaluation is available for eczema if there is exfoliation, exudation or itching, if involving an exposed surface or extensive area. 38 C.F.R. Part 4, Diagnostic Code 7806 (1999). A 30 percent evaluation is available for eczema if it is characterized by exudation or constant itching, with extensive lesions or marked disfigurement. Id. A 50 percent evaluation is available for eczema if it is characterized with ulceration or extensive exfoliation or crusting, and systematic or nervous manifestations, or exceptionally repugnant. Id. After having reviewed the evidence of record, the Board finds that the preponderance of the evidence is against an increased evaluation. The medical records reveal that the appellant has condylomata acuminata on his penis and anus. At the time of the May 1996 examination, the lesions were pedunculated and brownish. The subsequent medical evidence does not show that the nature of extent of the lesions had changed. Accordingly, it can be said that the evidence does not show that the appellant's condylomata acuminata is characterized by exudation or itching constant with extensive lesions or marked disfigurement. See 38 C.F.R. Part 4, Diagnostic Code 7806. The appellant has not reported such, and the current medical evidence does not so reflect. Additionally, he has not reported, and the VA examiner stated specifically that he did not have any nervous manifestations as a result of his service-connected condylomata acuminata. See id. Although Dr. Milam stated that the appellant would need general surgery for the condylomata acuminata on his anus, he did not make any clinical findings as to the current state of the condylomata acuminata. The clinical findings and the appellant's description of his condylomata acuminata, are not indicative of any more than a 10 percent disability evaluation. See id. Additionally, there have been no findings of ulceration, extensive exfoliation, or crusting or an exceptionally repugnant skin disorder. See id. The appellant is competent to report his symptoms. To the extent that he stated that his skin disability has worsened, the medical findings do not support an evaluation in excess of 10 percent. At the time of the May 1996 examination, the VA examiner did not report clinical findings that would be consistent with an evaluation in excess of 10 percent. The Board attaches far greater probative weight to the clinical findings of a skilled, unbiased professional than to the appellant's statements, even if sworn, in support of a claim for monetary benefits. Therefore, the Board finds that condylomata acuminata is no more than 10 percent disabling. The preponderance of the evidence is against the claim, and there is do doubt to be resolved. 38 U.S.C.A. § 5107(b) (West 1991). The Board notes that the appellant requested that his 10 percent disability evaluation be increased based upon the fact that his wife had contacted condylomata acuminata from him. The RO properly informed the appellant that his benefits could not be increased based upon his wife's condition. (CONTINUED ON NEXT PAGE) ORDER An increased evaluation for condylomata acuminata is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals