BVA9503491 DOCKET NO. 93-02 846 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased evaluation for residuals of a recurrent right ankle sprain, currently rated 20 percent disabling. 2 Entitlement to an increased evaluation for a skin disease of the right ankle with tinea pedis of the right foot and onychomycosis of the right great toe, currently rated 10 percent disabling. 3. Entitlement to service connection for a skin condition of the arms with boils of the waist area and neck, secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from October 1967 to October 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a December 1991 rating decision by the Department of Veterans Affairs (VA) Waco, Texas, Regional Office (RO), which granted service connection for posttraumatic stress disorder (PTSD), assigning a 30 percent disability evaluation, denied service connection for tinea pedis and onychomycosis of the right great toenail, and denied an increased evaluation for residuals of a recurrent right ankle sprain. This appeal also arises from a June 1992 rating decision that denied entitlement to service connection for a skin condition of the arms with boils of the waist area and neck. An October 1992 rating decision also denied service connection for a skin condition of the arms with boils of the waist area and neck The RO's rating decision in September 1994 denied service connection for a skin condition of the arms with boils of the waist area and neck, secondary to Agent Orange exposure. In informal arguments in January 1995, the appellant's representative raised the issue of entitlement to an increased evaluation for posttraumatic stress disorder, currently rated 30 percent disabling. Because this claim is not inextricably intertwined with the current claim and has not been developed for appellate consideration, it is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant claims that his service-connected residuals of a recurrent right ankle sprain and a skin disease of the right ankle with tinea pedis of the right foot and onychomycosis of the right great toe are each more severely disabling than currently evaluated. He also argues that exposure to Agent Orange in Vietnam resulted in the development of a skin condition of the arms with boils of the waist area and neck. 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 appellant'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 appellant's claim of entitlement to higher evaluation for residuals of a recurrent right ankle sprain. It is the decision of the Board that a 30 percent evaluation is warranted for the appellant's service-connected skin condition of the right ankle with tinea pedis of the right foot and onychomycosis of the right great toe because the evidence pertaining to that disability more nearly approximates the criteria for a 30 percent evaluation under 38 C.F.R. § 4.71a, Diagnostic Code 7806 (1994). The Board has also decided that the appellant has not met the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim of entitlement to service connection for a skin condition of the arms with boils of the waist area and neck due to Agent Orange exposure, is well- grounded. FINDINGS OF FACT 1. Residuals of a recurrent right ankle sprain are manifested by not more than marked limitation of motion, without evidence of ankylosis. 2. Skin disease of the right ankle with tinea pedis of the right foot and onychomycosis of the right great toe is manifested by constant itching and flaking and needs frequent medical attention. 3. Although there is medical evidence of record indicating the initial manifestations of a skin condition of the arms with boils of the waist area and neck more than 19 years after the appellant's separation from service, no evidence has been submitted which indicates that this disease is related to service, or is due to any in-service occurrence or event. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation in excess of 20 percent for residuals of a right ankle sprain are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.71a, Diagnostic Code 5270, 5271 (1994). 2. The schedular criteria for an evaluation of 30 percent for a skin condition of the right ankle with tinea pedis of the right foot and onychomycosis of the right great toe are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.20, 4.27, 4.118, Diagnostic Code 7899-7806 (1994). 3. The appellant has not submitted a well-grounded claim for service connection for a skin condition of the arms with boils of the waist area and neck, secondary to Agent Orange exposure. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented well-grounded claims as to the issues of entitlement to increased evaluations for residuals of a right ankle sprain and for skin disease of the right ankle with tinea pedis of the right foot and onychomycosis of the right great toe. The facts relevant to the appeal of these issues have been properly developed, and the obligation of the VA to assist the appellant in the development of these claims has been satisfied. Id. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (1994). 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 (1994). When an unlisted condition is encountered, it will be permissible to rate it 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 (1994). 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 VA, 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 (1994). I. Residuals of a Right Ankle Sprain Review of the appellant's service medical records shows that he was treated for a right ankle sprain in November 1967, which was manifested by marked swelling and severe contusion. An X-ray of the right ankle at that time revealed a considerable amount of soft tissue swelling surrounding the malleolus and a small 2 mm. avulsed fragment of bone immediately inferior to the lateral malleolus. The impression in November 1967 was a sprain, and the appellant's right leg was placed in a short leg walking cast. The medical evidence since service shows that the appellant has continued to experience pain and instability in his right ankle. A fee basis orthopedic examination conducted for the VA in July 1971 found that range of motion in the right ankle was normal, and an X-ray of the ankle showed that the ankle mortise was well- preserved, the joint spaces were evenly present, and a bony enlargement was probably occupying the anterior front end of the os calcis. The diagnosis was residuals of a severe sprain of the right ankle. The diagnosis at a January 1973 fee basis orthopedic examination for the VA was residuals of a sprain and marginal fractures of the right ankle, symptomatic. A March 1978 VA medical record indicated that the appellant was having difficulty with instability in the right ankle. Range of motion testing of the ankle at a May 1982 VA orthopedic examination revealed that dorsiflexion was to 10 degrees, plantar flexion was to 20 degrees, inversion was to 20 degrees, and eversion was to 10 degrees. At an October 1982 VA medical examination, dorsiflexion was to 20 degrees, plantar flexion was to 25 degrees, inversion was to 25 degrees, and eversion was to 10 degrees. At a May 1984 VA orthopedic examination, the appellant walked with a slight limp, was able to heel and toe walk with difficulty, and could squat (with a complaint of pain). There was some crepitus on palpation of the ankle with movement and with movement of the subastragalar joints. Range of motion testing showed that dorsiflexion was to 10 degrees, plantar flexion was to 20 degrees, inversion was to 20 degrees, and eversion was to 10 degrees A VA medical examination was conducted in November 1988, and at that examination the appellant gave a history of spraining his right ankle at least once a year on normal walking between 1967 and 1971, and a history of experiencing pain in his right ankle on an average of four times a year from 1972 to 1988. He indicated that there was arthritis in the right ankle and that he had to wear an air cast and a special brace on that ankle. He also reported that he received treatment for his right ankle at a VA clinic every four months, and that he had experienced constant pain in the right ankle for the past year, which was worse on standing or walking for four hours or more. He stated that rest provided relief and that he used Myoflex and Tylenol. Physical examination revealed moderate pain and stiffness in the right ankle, with a slightly swollen joint. Range of motion studies showed that dorsiflexion was to 15 degrees and plantar flexion was to 35 degrees. A March 1990 VA outpatient medical record noted that there was no swelling in the right ankle. A VA evaluation of the appellant's skin condition of the right ankle and a general review of systems as part of a psychiatric examination noted right ankle strain, by history. When there is marked limitation of motion of an ankle, a 20 percent evaluation is assigned. If limitation of motion of an ankle is moderate, a 10 percent evaluation is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (1994). For ankylosis of an ankle in plantar flexion, less than 30 degrees, a 20 percent evaluation is assigned. If there is ankylosis in plantar flexion of an ankle, between 30 and 40 degrees, or in dorsiflexion, between 0 and 10 degrees, a 30 percent evaluation is assigned. When there is ankylosis in plantar flexion in an ankle at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, or eversion deformity, a 40 percent evaluation is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5270 (1994). After careful and longitudinal review of the evidence in the claims file, the Board finds that the clinical findings do not demonstrate that an evaluation in excess of 20 percent is warranted for the appellant's residuals of a right ankle sprain. Although he has continued to experience pain, instability, and some limitation of motion associated with his right ankle, there is no evidence that he has any ankylosis in the ankle. Rather, every time the ankle has been tested for range of motion, he has had dorsiflexion and plantar flexion. Most recently, dorsiflexion was to 15 degrees, with 20 degrees being normal, and plantar flexion was to 35 degrees, with 45 degrees being normal. 38 C.F.R. § 4.71, Plate II (1994). Absent evidence that there is ankylosis in the right ankle, the Board is unable to identify a basis to grant an increased evaluation for residuals of a right ankle sprain. The Board has considered the testimony provided by the appellant at his September 1992 regional office personal hearing, but we do not find that this testimony, when considered with the other evidence of record, is supported by the other evidence so as to permit an allowance of the claim of entitlement to an increased evaluation for residuals of a right ankle sprain. Consideration has been given to the potential application of the provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the evidence does not suggest that the appellant's residuals of a right ankle sprain present such an exceptional or usual disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1994). For example, this disability has not required frequent periods of hospitalization, nor does it present marked interference with employment. II. Skin Condition of the Right Ankle When eczema is manifested by ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or is exceptionally repugnant, a 50 percent evaluation is assigned. If there is constant exudation or itching, extensive lesions, or marked disfigurement, a 30 percent evaluation is assigned. With exfoliation, exudation or itching, if involving an exposed surface or extensive area, eczema is assigned a 10 percent evaluation. When eczema has slight, if any, exfoliation, exudation or itching, if on a non exposed surface or small area, a noncompensable evaluation is assigned. 38 C.F.R. § 4.118, Diagnostic Code 7806 (1994). Review of the claims file shows that the RO, in a June 1982 rating decision, granted secondary service connection for a skin condition of the right ankle because the skin condition had been caused by an elastic ankle support that the appellant had been required to wear for treatment of his service-connected right ankle disability. The medical evidence considered by the RO in June 1982 included clinical findings from a September 1981 VA outpatient medical record that indicated the appellant had scaling and blisters of the right plantar area between the toes. A May 1982 VA orthopedic examination had revealed a scaly condition of the entire sole of the right foot and in-between the toes, and dermatological evaluation of the right foot at that examination had revealed a skin rash localized to the right ankle that had developed from the constant wearing of an ankle support on the right ankle. Hydrocortisone cream was prescribed for the skin rash, along with Myoflex cream for the ankle. At an October 1982 VA medical examination, the appellant reported a two year history of a skin condition caused by his right ankle support. A slight, localized skin separation was noted between the fourth and fifth toes on the right foot, and there were a few, small, round spots of flaking skin along the medial aspect of the right foot at the edge of the sole. There was also evidence of onychomycosis of the right great toenail, which was somewhat constricted in side to side diameter, was rolled in on the sides, and was mildly elevated with a yellowish discoloration with crumbly material under the nail. Examination of the right ankle at a May 1984 VA orthopedic examination revealed evidence of scaly, rough skin around the foot, particularly on the plantar side, which was felt to probably give him discomfort while walking and standing. The toenails were also noted to be affected by the skin condition, and were considered probably not comfortable at all. The diagnosis was severe and symptomatic scaly skin condition with deformity and disability involving the toenails and plantar skin of the right foot. VA outpatient medical records show treatment in 1984, 1985, 1986, and 1987 for a skin condition involving the right ankle and right foot. An August 1989 VA medical record indicates that the appellant had chronic tinea pedis that itched. At an October 1991 VA medical examination, the appellant gave a history of a skin rash on his right ankle and right foot since 1968 that had been treated with multiple medications. The present medication were Desenex powder, Tinactin cream, and a prescribed foot wash, and the appellant indicated that he changed his socks at least twice a day. He reported that the fungus infection of the right ankle and foot had persisted in spite of the use of medications, and that he experience severe flare-ups of the fungus infection at least once a month, with it becoming worse in hot weather. The fungus infection was found to be present at the examination, in the form of some dry, squamous lesions on the plantar surface of the right ankle and right foot, which were associated with quite a bit of itching. It was also noted that the right great toenail had been surgically removed and had not grown back. The diagnoses were symptomatic tinea pedis involving the right ankle and right foot, a history of onychomycosis of the right great toenail, and status post removal of the right great toenail. Of record is a September 1992 medical statement from C. M. Barnes, M.D., that indicates that he treated the appellant in June 1986 for spicules of nail in the nail bed of the right great toe, which were causing pain and catching on his socks. The physician stated that the matrixectomy (reported by way of history to have been done in 1984) had been a failure, and he blocked the toe with 1 percent Xylocaine and removed what pieces of nail matrix he could see. He indicated that he had seen the appellant several months later, at which time he was doing well. In an October 1992 rating decision, the RO determined that the appellant's service-connected skin condition of the right ankle should include tinea pedis of the right foot and onychomycosis of the right great toenail. Consequently, the RO awarded a 10 percent evaluation for the appellant's skin condition of the right ankle. After careful and longitudinal review of the evidence present in this case, including the appellant's hearing testimony, the Board has determined that the current clinical manifestations of the appellant's service-connected skin condition of the right ankle more nearly approximates the criteria for a 30 percent rating under Diagnostic Code 7806. The evidence reflects that the appellant experiences constant itching associated with his skin condition of the right ankle. He requires frequent medical treatment. Therefore, applying the provisions of 38 C.F.R. § 4.7 (1994), the Board finds that a 30 percent evaluation is warranted for his skin condition of the right ankle with tinea pedis of the right foot and onychomycosis of the right great toenail. Because the evidence does not suggest that there is ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or exceptionally repugnance associated with the appellant's skin condition of the right ankle, an evaluation in excess of 30 percent is not warranted. III. Skin Disease as a Residual of Agent Orange Exposure Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. §§ 1110 (West 1991). A chronic, tropical, or prisoner-of-war related disease, or a disease associated with exposure to certain herbicide agents listed in 38 C.F.R. § 3.309 (1994) will be considered to have been incurred in service under the circumstances outlined in this section even though there is no evidence of such disease during the period of service. No condition other than one listed in 38 C.F.R. § 3.309(a) (1994) will be considered chronic. 38 U.S.C.A. §§ 1101, 1112, 1113, 1116 (West 1991); 38 C.F.R. § 3.307(a) (1994). If a veteran was exposed to a herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) (1994) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) (1994) are also satisfied: Chloracne or other acneform disease consistent with chloracne; Hodgkin's disease; Non-Hodgkin's lymphoma; Porphyria cutanea tarda; multiple myeloma, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), and soft-tissue sarcoma. 38 C.F.R. § 3.309(e) (1994). The threshold question to be answered at the outset of the analysis of any issue is whether a well-grounded claim has been submitted; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). A veteran has, by statute, the duty to submit evidence that a claim is well-grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such evidence is not submitted, the claim is not well-grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). If a particular claim is not well-grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim since such development would be futile. Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well-grounded, except where such assertions are inherently incredible. See King v. Brown, 5 Vet.App. 19 (1993). In this case, the evidentiary assertions with regard to the appellant's claim of entitlement to service connection for a skin condition of the arms with boils of the waist area and neck, secondary to Agent Orange exposure, are inherently incredible when viewed in the context of the total record. Review of the appellant's service medical records reveals no complaint or finding of any skin disease involving the arms or of any boils in the wrist or neck areas. The July 1971 VA medical examination did not reveal any skin disease involving the arms, wrists, or neck. An Agent Orange examination conducted by the VA in November 1980 indicated that the skin was clear ant that there were no residuals found. The medical evidence shows that the appellant was treated for very slight scale on the dorsal scalp, described as chronic seborrhea, in August 1989. A February 1990 VA medical record notes three small papillomas on the appellant's neck. At his September 1992 personal hearing, the appellant stated that he had never been informed as to the cause of his boils on his body. As noted above, to establish service connection there needs to be a showing that the disability for which service connection is sought is, in some way, related to service. No such showing has been made as to the appellant's skin condition of the arms with boils of the waist area and neck. There is nothing in the clinical evidence that shows the presence of this disability either during service or for many years following separation from service, or that suggests it is etiologically related to any of his service-connected disabilities. He has failed to provide any clinical evidence of a relationship to service or to a service- connected disability. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Therefore, even though the appellant may now have a skin condition of the arms with boils of the waist area and neck, there is no objective evidence of medical causality from any incident in service or any service-connected disability, and as such, the claim is not well-grounded. See Grivois v. Brown, 6 Vet. App. 136 (1994). The appellant lacks medical expertise and is not qualified to render an opinion regarding a causal relationship between his skin condition of the arms with boils of the waist area and neck and any claimed in-service onset or a secondary relationship to his service-connected disabilities. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Furthermore, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded. Grottveit v. Brown, 5 Vet.App. 91, 93, (1993). Where the determination issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Id. Where there is no medical evidence of the claimed disorder during service, where there is no medical evidence linking the claimed disorder to service or an in-service event or occurrence, or where the disorders are not currently demonstrated, the claim is not well-grounded. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). The United States Court of Veterans Appeals (Court) has expressed its concern that, in a situation in which the claim is not well- grounded, a decision on the merits, if deemed final, could constitute an unwarranted impediment to the appellant should he seek to reopen the claim because such reopening would require the submission of new and material evidence. The Court has deemed it appropriate, where a decision was made on the merits with respect to a claim that was not well-grounded, to recognize the nullity of the prior decision and allow the appellant to begin, if he can, on a clean slate. Grottveit v. Brown, 5 Vet.App. at 93 (1993). In view of the clear direction given by the Court, it is imperative that finality in accordance with 38 C.F.R. § 3.104 (1994) not attach to the rating decisions of December 17, 1991, June 8, 1992, and September 2, 1994. ORDER An increased evaluation is denied for residuals of a right ankle sprain. An 30 percent evaluation is granted for skin disease of the right ankle with tinea pedis of the right foot and onychomycosis of the right great toe, subject to the laws and regulations governing the award of monetary benefits. Having found the claim of entitlement to service connection for a skin condition of the arms with boils of the waist area and neck, secondary to Agent Orange exposure, to be not well-grounded, the appeal as to that issue is dismissed, and the rating actions of December 17, 1991, June 8, 1992, and September 2, 1994, are vacated as to that issue. BETTINA S. CALLAWAY 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 so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.