Citation Nr: 9833073	
Decision Date: 11/06/98    Archive Date: 11/17/98

DOCKET NO.  94-47 217	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


THE ISSUES

1.  Entitlement to a separate compensable evaluation for the 
veteran’s allergy to JP-4 and other hydrocarbons.  

2.  Entitlement to an increased evaluation for hemorrhoids, 
currently evaluated as 20 percent disabling.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

John T. Hutcheson, Counsel


INTRODUCTION

The veteran had active service from March 1968 to December 
1975.  This matter came before the Board of Veterans' Appeals 
(Board) on appeal from an August 1994 rating decision of the 
Montgomery, Alabama, Regional Office (RO) which, in pertinent 
part, denied service connection for post-traumatic stress 
disorder (PTSD).  In September 1994, the veteran submitted a 
notice of disagreement.  In October 1994, the RO issued a 
statement of the case to the veteran and his accredited 
representative.  In November 1994, the veteran submitted a 
substantive appeal.  In April 1995, the RO recharacterized 
the veteran’s service-connected skin disability as chronic 
dermatosis with ichthyosis and an allergy to JP-4 and other 
hydrocarbons; assigned a 30 percent evaluation for that 
disability; denied service connection for a bilateral foot 
disorder to include calluses; denied a separate compensable 
evaluation for the veteran’s allergy to JP-4 and other 
hydrocarbons; and denied a compensable evaluation for his 
service-connected hemorrhoids.  In April 1995, the veteran 
submitted a notice of disagreement with the April 1995 rating 
decision.  In June 1995, the RO issued a supplemental 
statement of the case to the veteran and his accredited 
representative which addressed the issues of service 
connection for a bilateral foot disorder; a separate 
compensable evaluation for the veteran’s allergy to JP-4 and 
other hydrocarbons; and a compensable evaluation for his 
hemorrhoids.  In August 1996, the Board remanded the 
veteran’s claims to the RO for additional action.  

In September 1997, the RO, in pertinent part, increased the 
evaluation for the veteran’s hemorrhoids from noncompensable 
to 20 percent and denied a separate compensable evaluation 
for his skin disability of the feet.  In September 1997, the 
veteran submitted a notice of disagreement with the denial of 
a separate compensable evaluation for his skin disability of 
the feet.  In March 1998, the RO granted service connection 
for PTSD; assigned a 10 percent evaluation for that 
disability; granted service connection for bilateral equinus 
deformity of the feet with calluses and hammertoes; and 
assigned a 30 percent evaluation for that disability.  The 
veteran is represented in this appeal by the American Legion.  

In a document filed with the Board, the veteran has attempted 
to file an informal claim for a total rating for 
compensation.  The document was not filed with the RO, but 
shall be referred to the RO for appropriate action.  The 
documents are not relevant to the issues on appeals.  
Regardless, the issue of a total rating is not before the 
Board.  Jurisdiction does indeed matter and it is not 
"harmless" when the VA during the claims adjudication process 
fails to consider threshold jurisdictional issues.  Absent a 
decision, a notice of disagreement, a statement of the case 
and a substantive appeal, the Board does not have 
jurisdiction of the issue.  Rowell v. Principi, 4 Vet. App. 9 
(1993); Roy v. Brown, 5 Vet. App. 554 (1993).  An application 
that is not in accord with the statute shall not be 
entertained.  38 U.S.C.A. § 7108 (West 1991).  Furthermore, 
this Board Member cannot have jurisdiction of this issue.  
38 C.F.R. § 19.13 (1998).  The Court has noted that:  
Furthermore, 38 U.S.C.A. § 7105 (West 1991) establishes a 
series of very specific, sequential, procedural steps that 
must be carried out by a claimant and the RO or other "agency 
of original jurisdiction" (AOJ) (see Machado v. Derwinski, 
928 F.2d 389, 391 (Fed. Cir. 1991)) before a claimant may 
secure "appellate review" by the BVA.  Subsection (a) of that 
section establishes the basic framework for the appellate 
process, as follows:  Appellate review will be initiated by a 
notice of disagreement [(NOD)] and completed by a substantive 
appeal after a statement of the case is furnished as 
prescribed in this section.  Bernard v. Brown, 4 Vet. App. 
384 (1994).  None of the steps required for jurisdiction have 
been satisfied.  More recently, when another part of VA 
argued that an issue over which the Board did not have 
jurisdiction should be remanded, the Court again established 
that jurisdiction counts.  Specifically the Court could not 
remand a matter over which it has no jurisdiction.  Hazan v. 
Gober, 10 Vet. App. (1997).  The Court has also held that 
referral is appropriate.  Black v. Brown, 10 Vet. App. 279, 
284 (1997). 

Preliminary review of the record does not reveal that the RO 
expressly considered referral of the veteran’s claim for an 
increased evaluation for his hemorrhoids to the Department of 
Veterans Affairs (VA) Undersecretary for Benefits or the 
Director, VA Compensation and Pension Service for the 
assignment of an extraschedular rating under 38 C.F.R. 
§ 3.321(b)(1) (1997).  That 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 Undersecretary for 
Benefits or the Director, VA 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 Veterans Appeals 
(Court) has held that the Board is precluded by regulation 
from assigning an extraschedular rating under 38 C.F.R. 
§ 3.321(b)(1) (1997) 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).  Having reviewed the record with these 
mandates in mind, the Board finds no basis for further action 
on this question.  VAOPGCPREC 6-96 (1996).


CONTENTIONS OF APPELLANT ON APPEAL

The veteran asserts that the record supports assignment of a 
separate compensable evaluation for his allergy to JP-4 and 
other hydrocarbons and an increased evaluation for his 
hemorrhoids.  He contends that a separate compensable 
evaluation is warranted for his allergy to JP-4 and other 
hydrocarbons as it is a distinct disability separate and 
apart from his service-connected skin disorder and prevents 
him from participating in activities which might expose him 
to petroleum products such as refueling his automobile.  He 
advances that any exposure to the allergen causes his body to 
swell, to burst open, and to bleed.  



DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A. 
§ 7104 (West 1991 & Supp. 1998), 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 veteran has not submitted 
a well-grounded claim of entitlement to a separate 
compensable evaluation for his allergy to JP-4 and other 
hydrocarbons.  The Board further concludes that a 
preponderance of the evidence is against the veteran’s claim 
for an increased evaluation for his hemorrhoids.  


FINDINGS OF FACT

1.  The RO has obtained all relevant evidence necessary for 
an equitable disposition of the veteran's appeal.  

2.  Service connection is currently in effect for chronic 
dermatosis with ichthyosis and an allergy to JP-4 and other 
hydrocarbons.  A 30 percent evaluation is currently in effect 
for that disability under the provisions of 38 C.F.R. Part 4, 
Diagnostic Code 7806 (1997).  

3.  The veteran’s allergy to JP-4 and other hydrocarbons has 
not been shown to be manifested by a symptomatology distinct 
from his chronic dermatosis and ichthyosis.  

4.  The maximum schedular evaluation for hemorrhoids is 
currently in effect.  


CONCLUSIONS OF LAW

1.  The criteria for a separate compensable evaluation for 
the veteran’s allergy to JP-4 and other hydrocarbons have not 
been met.  38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 4.14 
(1997).  

2.  The criteria for an evaluation in excess of 20 percent 
for hemorrhoids have not been met.  38 U.S.C.A. §§ 1155, 5107 
(West 1991); 38 C.F.R. Part 4, Diagnostic Code 7336 (1997).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Allergy to JP-4 and Other Hydrocarbons

Service connection is currently in effect for chronic 
dermatosis with ichthyosis and an allergy to JP-4 and other 
hydrocarbons evaluated as 30 percent disabling under the 
provisions of 38 C.F.R. Part 4, Diagnostic Code 7806 (1997).  
That diagnostic code pertains to eczema and assigns 
evaluations principally based on the veteran’s skin 
disability picture.  

The veteran asserts on appeal that the record supports 
assignment of a separate compensable evaluation for his 
allergy to JP-4 and other hydrocarbons.  Generally, the 
evaluation of the same disability under various diagnoses is 
to be avoided.  38 C.F.R. § 4.14 (1997).  In Esteban v. 
Brown, 6 Vet. App. 259, 262 (1994), the Court clarified that 
evaluations for distinct disabilities resulting from the same 
injury could be combined so long as the symptomatology for 
one condition was not "duplicative of or overlapping with the 
symptomatology" of the other condition.  
VA clinical documentation dated between May 1991 and December 
1993 reflects ongoing treatment of the veteran’s ichthyosis 
vulgaris.  At a February 1994 VA examination for compensation 
purposes, the veteran exhibited a fish-like scale over most 
of his body.  At a March 1995 VA examination for compensation 
purposes, the veteran presented a history of allergic 
reactions manifested by skin swelling, cracking, and bleeding 
following exposure to oil and petrol.  He clarified that he 
experienced the same or a lesser reaction when exposed to 
“fumes etc.”  On examination, the veteran exhibited dry 
skin all over his body which was thicker than normal and 
“peeled off slightly and easily.”  The VA physician did not 
observe any open cracks in the skin.  The veteran was 
diagnosed with chronic eczema or allergies secondary to oil 
and petrol and ichthyosis.  

In his February 1996 substantive appeal, the veteran advanced 
that:

I feel that my allergy to gas and oil was 
caused by my exposure to these products 
while on active Air Force duty and has 
persisted ever since.  This allergy 
prevents me from being around any of 
these products.  I can’t refuel my auto 
or any other vehicle and this greatly 
restricts my daily activities.  I feel 
that this fact should allow you to award 
a separate evaluation for this condition.  
This allergy causes my body to swell and 
burst open and bleed when exposed to gas 
and oil.  This is clearly a separate 
condition from my ichthyosis vulgaris and 
it should be service-connected as a 
separate condition.  

A September 1997 treatment record from Ronald D. Agee, 
D.P.M., indicates that the veteran complained of “cracking 
and splitting of the skin grossly over the body.”  In a 
September 1997 written statement, the veteran related that:

I continue to disagree with your denial 
of my claim for a seperate (sic) 
evaluation for allergy (sic) to gas and 
oil.  I am so allergic to these products 
that whenever exposed I swell and I swell 
so much that my skin will burst open.  I 
feel that this condition should command a 
seperate (sic) evaluation and not be 
lumped into your evaluation for my skin 
condition.  

At a November 1997 VA examination for compensation purposes, 
the veteran complained of chronic ichthyosis vulgaris 
affecting essentially his entire body.  The VA examiner 
observed thickened, hyperpigmented, and ichthyotic-appearing 
skin involving the back, the forearms, and the lower 
extremities from the knees to the feet.  The physician 
advanced an impression of “ichthyosis vulgaris involving the 
entire body, particularly extensive below the knees and feet 
resulting in dyshidrosis in the heels [and the] plantar 
surface with a fissuring cracking.”  

In his June 1998 Written Brief Presentation, the national 
accredited representative advanced that “the veteran also 
contends that his allergies to petroleum products produce 
symptoms of such severity as to warrant a separate 
evaluation.”  

The Board has reviewed the probative evidence of record 
including the veteran’s statements on appeal.  The clinical 
documentation of record shows ongoing treatment for the 
veteran’s extensive ichthyosis vulgaris.  While noting his 
allergy to petroleum products, the veteran’s examining 
physicians did not identify a symptomatology arising from the 
veteran’s allergy which was separate and distinct from his 
chronic dermatosis and ichthyosis.  There is no objective 
evidence of any current allergic symptomatology besides his 
extensive skin disability.  

The Board views the issue on appeal as a legal issue rather 
than an issue of whether the claim is well grounded.  Service 
connection is granted for disability resulting from disease 
or injury incurred in or aggravated by service.  The VA has 
accepted the fact that the veteran has a disease (allergy) 
and accepted the fact that there is disability, manifested by 
skin lesions.  What the veteran seeks is a separate line on a 
rating decision for the disability, as distinct from the 
disease process.  In essence, the veteran seeks to have a 
grant of service connection for a skin disorder due to an 
allergy and a separate grant of service connection for the 
allergy when there are no manifestations other than the 
identified skin disorder.  This is prohibited.  

In the absence of any current non-skin manifestations of the 
veteran’s allergy to petroleum products, the Board notes that 
a separate compensable evaluation would be based on the same 
symptomatology as supports the current 30 percent evaluation 
under the provisions of 38 C.F.R. Part 4, Diagnostic Code 
7806 (1997).  Such an evaluation would be contrary to the 
provisions of 38 C.F.R. § 4.14 (1997) and the Court’s 
decision in Esteban v. Brown.  Therefore, the Board concludes 
that the veteran’s claim for a separate compensable 
evaluation for his allergy to JP-4 and other hydrocarbons is 
lacking legal merit.  Accordingly, the claim is denied.  38 
U.S.C.A. § 5107 (West 1991).  

The veteran is informed that if he is able to produce 
competent evidence reflecting a distinct non-skin 
symptomatology arising from his allergy to JP-4 and other 
hydrocarbons, he should submit a new claim.  The veteran is 
also at liberty to file a claim for an increased evaluation, 
a total rating for compensation on the basis of individual 
unemployability, or for an extraschedular evaluation.  

II.  Hemorrhoids

Generally, a claim for increased disability compensation is 
well-grounded as long as the veteran is not in receipt of the 
maximum schedular evaluation for the disability.  Shipwash v. 
Brown, 8 Vet .App. 218, 224 (1995).  In this instant appeal, 
the Board observes that the veteran’s claim was initiated 
when the evaluation was less than the maximum available under 
38 C.F.R. Part 4, Diagnostic Code 7336 (1997).  The fact that 
the veteran prevailed and received the maximum assignable 
evaluation does not retroactively render his claim not 
well-grounded.  A review of the record indicates that the 
veteran's initial claim for an increased evaluation was 
plausible and that all relevant facts have been properly 
developed.  

The veteran's service medical records indicate that he was 
treated for internal and external hemorrhoids.  The report of 
a December 1983 VA examination for compensation purposes 
conveys that the veteran exhibited perirectal surgical 
residuals and no internal or external hemorrhoids.  The 
veteran was diagnosed with a “history of hemorrhoidectomy.”  
In February 1984, the RO established service connection for 
hemorrhoids and assigned a noncompensable evaluation for that 
disability.  

The report of the November 1996 VA examination for 
compensation purposes relates that the veteran exhibited 
partly thrombosed, partly inflamed, and bleeding irreducible 
internal and external hemorrhoids; excessive redundant 
tissue; and “questionable anemia.”  In September 1997, the 
RO increased the evaluation for the veteran’s hemorrhoids 
from noncompensable to 20 percent.  

Disability evaluations are determined by comparing the 
veteran's current symptomatology with the criteria set forth 
in the Schedule For Rating Disabilities.  38 U.S.C.A. § 1155 
(West 1991); 38 C.F.R. Part 4 (1997).  A 20 percent 
evaluation disability evaluation is warranted for hemorrhoids 
with persistent bleeding and secondary anemia or with 
fissures.  38 C.F.R. Part 4, Diagnostic Code 7336 (1997).  

The Board observes that the veteran is currently in receipt 
of the maximum schedular evaluation available under 
Diagnostic Code 7336.  The Board has considered whether any 
other diagnostic code is applicable to the veteran’s claim.  
The Board finds that the assigned diagnostic code is directly 
on point and that any resort to other diagnostic codes would 
be inappropriate.  Therefore, the Board concludes that an 
evaluation in excess of 20 percent for the veteran’s 
hemorrhoids is not warranted.  

Stated differently, the claim commenced when the evaluation 
was 0 percent.  The Board determined that the claim was well 
grounded and ordered a Remand.  While still at the regional 
office, the RO recognized the merits of the claim and awarded 
the veteran the maximum schedular benefit possible.  Although 
the veteran “won,” there is a limit to the evaluation 
assignable based on regulations.


ORDER

A separate compensable evaluation for the veteran’s allergy 
to JP-4 and other hydrocarbons is denied.  An increased 
evaluation for hemorrhoids is denied.  



		
	H. N. SCHWARTZ
	Member, Board of Veterans' Appeals

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West 
1991 & Supp. 1998), a decision of the Board granting less 
than the complete benefit, or benefits, sought on appeal is 
appealable to the Court 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, 102 Stat. 4105, 4122 (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.  
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