BVA9501927 DOCKET NO. 91-24 148 ) DATE ) ) THE ISSUES 1. Entitlement to an increased rating for residuals of excision of malignant melanoma of a left inguinal lymph node with chronic left lower extremity edema, currently evaluated as 60 percent disabling. 2. Entitlement to an increased rating for scar, residuals of excision of malignant melanoma of the left thigh, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeffrey A. Pisaro, Counsel INTRODUCTION The veteran had active service from August 1985 to November 1988. This appeal arises from a January 1991 rating decision of the Buffalo, New York, Regional Office (RO), which continued 10 percent evaluations for residuals of excision of a malignant inguinal lymph node, and residuals of excision of malignant melanoma of the left thigh. By rating action in February 1992, a 30 percent evaluation was assigned for residuals of excision of malignant melanoma of a left inguinal lymph node; subsequently, the current 60 percent rating was assigned by rating action in February 1993, effective from July 1990. The veteran continues to express disagreement with the assigned ratings. During the pendency of this appeal, the veteran moved from New York to Florida, and since June 1991 his claim has been adjudicated by the St. Petersburg, Florida, Regional Office (RO). The case was remanded by the Board to the RO in September 1991 and August 1992 for additional development of the evidence and for due process reasons. In March 1994, the case was referred for a Board medical advisor opinion which was received in June 1994. For the reasons discussed below, the Board medical advisor opinion will not be utilized in rendering this decision After developing the other additional evidence in this case, the Board, in accordance with Thurber v. Brown, 5 Vet.App. 119 (1993), informed the appellant's representative in an April 1994 letter of the additional evidence developed, and provided an opportunity to respond. The representative responded in December 1994 indicating that no further argument or comment would be presented. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends that the RO erred by failing to grant higher evaluations for the disabilities at issue. He states that the his left lower leg disability has deteriorated and is manifested by constant severe swelling, discomfort, and pain. These symptoms interfere with sleeping and render him unable to walk or stand for extended periods. As a result, the veteran contends that his physical activities and employability have been significantly diminished. 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 file. 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 preponderance of the evidence is against the claim for increased ratings for the disabilities at issue. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Residuals of excision of malignant melanoma of a left inguinal lymph node with chronic left lower extremity edema is manifested primarily by persistent severe swelling from the thigh to the toes, which subsides only incompletely, and some brawny skin changes; without evidence of massive board-like swelling, severe constant pain at rest, initial infection with severe lymphangitis or lymphadenitis, or chronic disability with repeated recurrences and a tendency to severe multiple involvement of the extremities and scrotum or severe adenitis. 3. Scar, residuals of excision of malignant melanoma of the left thigh is primarily manifested by a well healed skin graft over the anterior aspect of the mid-portion of the thigh, without evidence of resulting limitation of function of the left lower extremity. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for residuals of excision of malignant melanoma of a left inguinal lymph node with chronic left lower extremity edema have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, Part 4 to include §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.40, Codes 6305, 7121 (1993). 2. The criteria for a rating in excess of 10 percent for scar, residuals of excision of malignant melanoma of the left thigh have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, Part 4 to include §§ 4.1, 4.2, 4.7, 4.10, 4.40, Codes 7804, 7805 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented claims which are plausible. This test having been met, the Board must examine the record and determine whether there is any further obligation to assist the veteran in the development of his claim. Pursuant to the Board's August 1992 remand, treatment records were obtained from the Gainesville VA medical center, and from Big Flats Family Practice. The Board finds, and the representative has conceded in the July 1993 written argument, that the acquisition of the cited records completes the evidentiary development in this case, and that no further assistance is required to comply with the duty to assist under 38 U.S.C.A. § 5107(a). An August 1988 medical board report shows that the veteran was hospitalized in May 1988 and underwent an excisional biopsy of a superficial spreading melanoma of the left thigh and an inguinal lymph node dissection. There was slight edema of the lower extremities most likely secondary to the lymph node dissection. A pathology report revealed that one of the superficial lymph nodes was positive for metastatic malignant melanoma. The Board opined that the veteran was unfit for duty and his case was referred to the Physical Evaluation Board (PEB). A September 1988 PEB report concluded that malignant melanoma of the left thigh prevented satisfactory performance of duty. By rating action in September 1989, service connection was granted for residuals of excision of malignant inguinal lymph node, assigned a 10 percent evaluation; and for residuals of excision of malignant melanoma of the left thigh, assigned a noncompensable evaluation, both effective from June 1989. From November 1988 through May 1989, the veteran was assigned a 50 percent prestabilization rating. April and June 1989 VA outpatient treatment notations reveal that there was swelling of the left leg, and that the veteran wore a support stocking on the left leg. By rating action in January 1990, a 10 percent evaluation was assigned for the left thigh disability, effective from June 1989. On VA examination in July 1990, there was a 10 by 8 cm. scar of the left upper thigh of smooth texture. The veteran reported continuous pain of the left leg which was aggravated by standing. There was swelling and the scar was disfiguring. There was a 27 by 2 cm. vertical scar from the left upper inguinal area extending down onto the left thigh. The scar was very noticeable and cosmetically disfiguring, but not depressed or painful. The left leg was swollen below the knee. The left calf measured 45 cm. and the right calf measured 39 cm. There was mild non-pitting edema of the left foot. A July 1990 VA outpatient notation shows that there was marked swelling of the left leg. In October, the veteran reported left leg swelling for the past year. No recent change or pain was reported. In November, examination showed left leg swelling, and trace pitting edema of the pretibial area. A January 1991 notation from Big Flats Family Practice shows that there was a questionable infection of an old scar of the abdomen in a small open area. It caused pain which went down the left leg. On VA examination in December 1991, the veteran complained of pain and chronic swelling of the left leg. He had tried Jobst's stockings, but had some discomfort and was not currently using support hose. The veteran worked as a dental assistant, and his condition seemed to slow him down. On examination, there was marked swelling of the left leg. The left leg measured 58 cm., and the right leg measured 48 cm. A 7 cm. well healed circular defect of the anterior lateral thigh was covered with a split thickness skin graft which was well healed. The impression was malignant melanoma of the left thigh with re-excision and lymph node dissection. The veteran was chronically plagued with swelling of the left side due to lymph node dissection, and the use of support stocking was recommended. VA vascular examination report in January 1992 revealed that there was chronic left lower extremity lymphedema. The edema caused pain and occasional skin breakdown. On examination, there was severe left lower extremity lymphedema with atrophic skin. There were no open lesions. It was noted that the veteran would need to keep his left leg elevated as much as possible and use support stocking. By rating action in February 1992, a 30 percent evaluation was assigned for residuals of excision of left inguinal lymph node, effective from July 1990. In January 1992, the veteran was fitted for a Jobst stocking; in August 1992, it was noted that full leg stockings had improved left leg swelling. On VA neurologic examination in January 1993, motor strength was 5/5, and sensory examination was intact to pin prick, touch and proprioception. Gait was normal. The impression was normal neurological examination. X-rays of the left lower leg, ankle, and foot revealed very extensive subcutaneous edema of the left lower leg, ankle, and foot. Lymphatics were dilated. Bones and joints looked fine. On VA vascular examination in January 1993, it was reported that the veteran had been followed at the VA vascular surgery clinic and treated with compression garments including a full length left lower extremity stocking with resulting marked improvement in the veteran's edema and symptomatology. Occasionally, the veteran developed lymph leaks from cutaneous break down which was adequately managed with bulky dressing and Ace wrapping. The veteran tolerated this well with elevation of the left leg and the condition would heal within several days. On examination, the leg was edematous from the thigh to the toes without evidence of skin break down. Pulses were palpable throughout. There was no change in pigmentation, cyanosis, eczema, or ulceration. There were no complaints of rest pain or claudicative symptoms in the leg. In summary, the examination demonstrated chronic left lower extremity lymph edema secondary to a groin dissection in 1988. The veteran had had significant improvement with an external compression full leg stocking. On VA orthopedic examination in January 1993, it was reported that the left leg would get larger and smaller, but was never normal size. He wore a Jobst stocking at all times which decreased swelling but did not totally relieve it. Examination showed severe left lower extremity edema with some brawny skin changes. There were no open lesions anywhere on the left lower extremity. There was a well healed skin graft over the anterior aspect of the mid-portion of the thigh which measured 8 by 7 cm. He was neurovascularly intact distally to his toes. Dorsalis pedis and posterior tibial pulses were non-palpable secondary to edema. There were no areas of tenderness. The assessment was severe left lower extremity lymph edema secondary to left groin lymphadenectomy. There was no evidence of bone or joint pathology. By rating action in February 1993, a 60 percent evaluation was assigned for status post excision, malignant melanoma of a left inguinal lymph node with chronic left lower extremity edema, effective from July 1990, under Diagnostic Code 6305; and a 10 percent rating remained in effect for scar, residuals of excision of malignant melanoma of the left thigh under Diagnostic Code 7804 of Department of Veterans Affairs' (VA) Schedule for Rating Disabilities, 38 C.F.R. Part 4. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. Also, 38 C.F.R. § 4.10 provides that in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part, and medical examiners must furnish, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon the person's ordinary activity. 38 C.F.R. § 4.40 requires consideration of functional disability due to pain. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. This includes functional disability due to pain under the provisions of 38 C.F.R. § 4.40. In the February 1993 rating action, the RO rated residuals of excision of malignant melanoma of a left inguinal lymph node under Code 6305, filariasis. Previously, that disability had been rated under Code 7121, phlebitis. 38 C.F.R. § 4.20, analogous ratings, provides that when an unlisted condition is encountered (as is the case here) it is 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. The functions affected, the anatomical localization, and symptoms in this case are most closely analogous with the rating criteria under Codes 6305 and 7121; accordingly, higher schedular ratings for the veteran's disability will be considered under both codes. Under applicable criteria, a 60 percent evaluation is warranted for filariasis with repeated recurrences and beginning permanent deformity of the extremities or scrotum or moderate lymphadenitis; a 100 percent evaluation is provided for either an initial infection with severe lymphangitis or lymphadenitis or chronic disability with repeated recurrences and a tendency to severe multiple involvement of the extremities and scrotum or severe lymphangitis. 38 C.F.R. Part 4, Code 6305. Lymphangitis and lymphadenitis are common manifestations of a bacterial infection that is usually caused by hemolytic streptococci or staphylococci (or by both organisms) and usually arises from an area of cellulitis, generally at the site of an infected wound. The wound may be very small or superficial, or an established abscess may be present, feeding bacteria into the lymphatics. The involvement of the lymphatics is often manifested by a red streak in the skin extending in the direction of the regional lymph nodes, which are, in turn, generally tender and enlarged. Systemic manifestations include fever, chills, and malaise...Throbbing pain is usually present in the area of cellulitis at the site of bacterial invasion. Malaise, anorexia, sweating, chills, and fever...develop rapidly...The involved regional lymph nodes may be significantly enlarged and are usually quite tender. The pulse is often rapid. Lawrence M. Tierney, Jr., et al., eds, Current Medical Diagnosis and Treatment, 409 (33rd ed. 1994). The current 60 percent evaluation is the highest possible under the criteria in Code 6305. The cited medical text reveals that the criteria for a 100 percent evaluation under Code 6305 entails a more extensive disability than is evident in the veteran's case. The recent medical evidence does not demonstrate that the veteran suffers from severe lymphangitis or lymphadenitis as clinical findings do not include symptoms such as fever, chills, malaise, anorexia, rapid pulse, or enlarged or tender lymph nodes. Neither does the record show involvement of both lower extremities or the scrotum. Persistent swelling of the left leg, as evidenced by the record, is contemplated by the current 60 percent rating under Code 6305; however, the veteran's disability picture is not analogous to the criteria necessary for 100 percent rating under Code 6305. Turning to Code 7121, a 60 percent evaluation is warranted for persistent swelling which subsides only very slightly and incompletely with recumbency and elevation in addition to pigmentation, cyanosis, eczema or ulceration. A 100 percent evaluation requires massive board like swelling with severe and constant pain at rest. 38 C.F.R. Part 4, Code 7121. As with Code 6305, the current 60 percent evaluation under Code 7121 is in keeping with the veteran's disability picture, as there is no evidence of massive board like swelling or severe constant pain on rest in recent VA outpatient treatment notations and examination reports. Conversely, recent notations indicate that the veteran has ameliorated symptomatology with the use of stockings and Ace bandages, and elevation of the left leg. Turning to the issue of an increased rating for scar, residuals of excision of malignant melanoma of left thigh, applicable criteria warrant a 10 percent rating for superficial, tender, and painful scars on objective demonstration. 38 C.F.R. Part 4, Code 7804. The current 10 percent rating is the highest possible under Code 7804. In order to obtain a higher evaluation there would have to be evidence of limitation of function of an affected part under Code 7805; however, the recent VA examination reports do not show interference with functioning of the left lower extremity due to the left thigh scar. Accordingly, the preponderance of the evidence is against the claims for higher evaluations for the disabilities at issue. Relative to both claims, although the veteran has not specifically requested an extraschedular rating, it must be considered based on the Court's holding in Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In exceptional cases where the evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service connected disability may be approved provided 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). The veteran's disability picture is not seen to be exceptional or unusual. He has not required frequent periods of hospitalization during the period in question, and he has not submitted evidence to establish marked interference with employment. In short, the ratings currently assigned for the disabilities at issue fully compensate the veteran for his loss of earning power. Moreover, the disability picture does not more nearly approximate the criteria for the next higher evaluation under the provisions of 38 C.F.R. § 4.7. The Board also notes that this case was referred for a Board medical advisor opinion in March 1994 as to whether the veteran had severe lymphadenitis as that term is used in Code 6305. In June 1994, Charles W. Foulke, M.D., submitted an opinion which has been placed in the claims file. The opinion was to the effect that the veteran's lymphedema is of the obstructive type. Owing to its etiology (lymphadenectomy), it cannot be associated with lymphadenitis, including severe lymphadenitis. The Board will not consider the June 1994 medical advisor opinion as to do so would cause prejudice to the veteran. The recent case of Austin v. Brown, 6 Vet. App.6 Vet App 547 (1994) 547 (1994), dealt with the use of Board medical advisor opinions. In that case, the Court stated that the Board had violated the principles of fair process and the express holding in Thurber v. Brown, 5 Vet.App. 119, 126 (1993). In Thurber, the Court held that before the Board could rely on any evidence developed or obtained subsequent to the issuance of the most recent statement of the case or supplemental statement of the case, the Board must provide a claimant with reasonable notice of such evidence and of the reliance proposed to be placed on it, and provide a reasonable opportunity for the claimant to respond. Thurber at 126. As the Board did not rely on the Board medical advisor opinion in this case, the holding in Thurber does not apply here. The Court in Thurber also stated that 38 C.F.R. § 20.903 applies to VA opinions. That regulation provides that when the Board requests an opinion pursuant to § 20.901, the Board will notify the veteran and the veteran's representative, if any. When the opinion is received by the Board, a copy of the opinion will be furnished to the veteran's representative, or to the veteran if there is no representative. A period of 60 days from the date of mailing of a copy of the opinion will be allowed for response. 38 C.F.R. § 20.903. In the instant case, the Board did not follow the procedure set forth in § 20.903, as the veteran and his representative were not notified that a Board medical advisor opinion was being requested. The June 1994 Board medical advisor opinion supports a denial of the veteran's claim. As a result, the Board would commit prejudicial error if the June 1994 opinion was considered; accordingly, that decision was not relied on in the adjudication of the veteran's claim. ORDER Entitlement to increased ratings for residuals of excision of malignant melanoma of a left inguinal lymph node with chronic left lower extremity edema; and for scar, residuals of excision of malignant melanoma of the left thigh, are denied. I. S. SHERMAN 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.