Citation Nr: 9909630	
Decision Date: 04/07/99    Archive Date: 04/16/99

DOCKET NO.  97-14 921	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, 
Virginia


THE ISSUES

1.  Entitlement to service connection for a skin disorder to 
include tinea cruris of the groin and acne vulgaris of the 
chest wall.

2.  Entitlement to an increased (compensable) evaluation for 
left ear hearing loss.

3.  Entitlement to an increased evaluation for mechanical low 
back pain, currently rated 10 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

R. E. Smith, Counsel


INTRODUCTION

The veteran had active military service from September 1981 
to September 1992.

This matter came before the Board of Veterans' Appeals 
(Board) on appeal from a February 1997 rating action by the 
Department of Veterans Affairs (VA) Roanoke, Virginia, 
Regional Office (RO), which denied the veteran's claim for 
service connection for a skin disorder and granted the 
veteran service connection for a left ear hearing loss and a 
mechanical low back disorder, both of which were rated as 
noncompensably disabling.  By an RO rating action, dated June 
1998, the disability evaluation for the veteran's service-
connected low back disorder was increased from noncompensable 
to 10 percent disabling from August 1996.

During the course of this appeal, the RO, by a rating action 
dated in July of 1998, denied the veteran entitlement to 
service connection for post-traumatic stress disorder and 
hypertension.  These issues have not been developed for 
appellate review and, thus, will not be addressed herein.


FINDINGS OF FACT

1.  The veteran has not presented medical evidence tending to 
link his current skin disorders, eczema and tinea cruris, to 
the skin findings or any other disease or injury in service.

2.  The veteran has Level II hearing in the left ear; there 
is no service-connected disability of the right ear.

3.  The veteran's service-connected low back disorder is 
manifested by complaints of back pain, soreness on motion, 
and occasional mild spasm, with no objective limitation of 
motion, muscle atrophy and/or functional loss due to pain.


CONCLUSIONS OF LAW

1.  The veteran's claim of entitlement to service connection 
for a skin disorder, to include tinea cruris of the groin and 
acne vulgaris of the chest wall, is not well grounded.  
38 U.S.C.A. § 5107(a) (West 1991).

2.  The schedular criteria for an increased (compensable) 
evaluation for a left ear hearing loss have not been met.  
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.383, 
4.7, 4.85 and Part 4, Code 6100 (1998).

3.  The schedular criteria for an increased evaluation for a 
mechanical low back disorder have not been met.  38 U.S.C.A. 
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.10, 4.40, 
4.45, 4.59 and Part 4, Codes 5292, 5295 (1998).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Service Connection for a Skin Disorder

Service connection may be granted for a disability resulting 
from disease or injury which was incurred in or aggravated by 
service.  38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. 
§ 3.303(a) (1998).  Service connection may be granted for any 
disease diagnosed after discharge, when all of the evidence, 
including that pertinent to service, establishes that the 
disease was incurred in service.  38 C.F.R. § 3.303(d) 
(1998).

The threshold question to be answered in the veteran's appeal 
as to this issue is whether he has presented a well-grounded 
claim.  If not, his claim must fail and there is no further 
duty to assist him the development of his claim.  38 U.S.C.A. 
§ 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990).  
Establishing a well-grounded claim for service connection for 
a particular disability requires more than an allegation of 
the disability as service connected, it requires evidence 
relevant to the requirement of service connection and of 
sufficient weight to make the claim plausible and capable of 
substantiation.  Tirpak v. Derwinski, 2 Vet. App. 609 (1992).  
The requirements of a well-grounded claim for service 
connection are summarized in Caluza v. Brown, 7 Vet. App. 498 
(1995).  There must be competent evidence of a current 
disability (a medical diagnosis), of incurrence or 
aggravation of a disease or injury in service (clinical 
evidence or, in some circumstances lay evidence), and a nexus 
between the service injury or disease and the current 
disability (medical evidence).  Caluza, supra.  

The veteran contends that he has a recurrent skin disorder 
attributable to events in service including exposure therein 
to chemical smoke.  

The service medical records show isolated treatment provided 
to the veteran for complaints referable to a recurrent boil 
under the right armpit and near the left axilla.  The veteran 
was initially treated for a boil under the right armpit in 
September 1982.  This boil was diagnostically assessed as 
hidradenitis suppurativa.  Hidradenitis suppurativa located 
near the left axilla was clinically assessed and treated in 
January 1987.  A boil under the right arm was drained in 
August 1990.  On the veteran's medical examination for 
service discharge in March 1992 the veteran's skin was found 
to be normal.  Lastly in May 1992 prior to the veteran's 
service discharge, a boil on the left axilla was evaluated 
and treated by service physicians.

On the veteran's initial VA examination in January 1997, he 
reported a history of recurrent rashes on his back and on his 
groin.  On physical examination the veteran was found to have 
a darkened discoloration around his scrotum extending into 
the perineum and up into both inguinal regions.  There were 
no active lesions and the discoloration was described as 
grayish and dusky, compatible with tinea cruris.  The veteran 
was also found to have pustules on his posterior chest wall, 
consistent with acne vulgaris.  Skin condition consisting of 
acne vulgaris and tinea cruris was the pertinent diagnosis.

At a personal hearing on appeal before a hearing officer in 
December 1997, the veteran described the nature of his skin 
disorder and its treatment.  The veteran said that his skin 
disorders first appeared in 1991 when he was in the area of 
the Persian Gulf and that his body just started breaking out.  

Submitted into evidence at the veteran's December 1997 
hearing were private treatment records from the Sentara 
Hampton General Hospital.  Included in these records was an 
April 1997 entry recording clinical findings of eczema with 
excoriations on the veteran's back and a skin tag on the 
right shoulder area.

In this case, the service medical records show four distinct 
episodes of evaluation and treatment provided to the veteran 
in service for a skin condition involving boils.  These boils 
were diagnosed in September 1982 and January 1987 as 
hidradenitis suppurativa.  The veteran avers that he suffers 
from a chronic skin condition, which had its onset in 
service.  There is, however, no competent medical evidence of 
record that supports this assertion or otherwise points to a 
nexus between the veteran's current skin disease and the 
treatment rendered to him in service between 1987 and 1992 
for hidradenitis suppurativa.

Although the veteran has testified that his current skin 
disorders had their onset in service and are attributable to 
events therein, he has submitted no medical evidence pointing 
to such a causal relationship.  The veteran's statements and 
testimony are only competent to the extent that the veteran 
has articulated information concerning what he experienced, 
but not with respect to diagnoses or medical causation.  See 
Savage v. Brown, 10 Vet. App. 488; Falzone v. Brown, 8 Vet. 
App. 398 (1995).  The United States Court of Veterans 
Appeals, now the U.S. Court of Appeals for Veterans Claims 
(Court), has held that a lay person is not competent to 
provide probative evidence as to matters requiring expertise 
derived from specialized medical education and training.  
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).

Moreover, the Court has held where the determinative issue 
involves medical causation or diagnosis, there must be 
competent medical evidence supporting a claim to make it 
"plausible and thus well grounded."  Grottveit v. Derwinski, 
5 Vet. App. 91 (1993).  The veteran is not competent to make 
a diagnosis of any disability and render an opinion as to its 
relationship to his active service.  As the record contains 
no competent evidence linking his current skin disabilities 
to the treatment provided during service, as summarized 
above, or any other inservice event or occurrence, the claim 
for service connection for a skin disorder is not well 
grounded.  

The Board notes that the current skin disorders have been 
diagnosed.  Thus there is no "undiagnosed illness" and the 
provisions of 38 C.F.R. § 3.317 (1998) do not apply to the 
claim.


II.  Increased Evaluation Claims

The Board finds that the veteran's claim seeking an increased 
evaluation for his service-connected left ear hearing loss 
and his claim for an increased evaluation for his service-
connected low back disorder are both well grounded.  The 
Board is also satisfied that all relevant facts have been 
properly developed.  The record is devoid of any indication 
that there are additional records available which should be 
obtained.  VA examination was conducted and sufficiently 
documents the nature and current severity of the veteran's 
hearing loss and low back complaints.  Therefore, no further 
development is required to comply with the duty to assist 
mandated by 38 U.S.C.A. § 5107(a).

Disability evaluations are based upon the average impairment 
of earning capacity as determined by a schedule of rating 
disabilities.  Separate codes identify the various 
disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  In 
determining the current level of impairment, each disability 
must be considered in the context of the whole-recorded 
history.  38 C.F.R. §§ 4.1, 4.2 (1998).  Notwithstanding 
this, we should also note that disability evaluations are 
assigned primarily on the basis of the current level of 
impairment shown on objective evaluation.  See 38 U.S.C.A. 
§ 1155; Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Where 
there is a question of which of two evaluations will 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.

A.  Left Ear Hearing Loss

The veteran contends that his service-connected hearing loss 
is more disabling than currently evaluated.  He maintains 
that his employment is affected by this hearing loss, as he 
has on occasion not heard directions provided to him by his 
supervisors.

Service medical records show that the veteran was noted to 
have a slight high frequency hearing loss on a periodic 
medical examination afforded him in March 1989.

On VA examination in January 1997, the veteran reported 
difficulty hearing well out of both ears.  He further 
indicated exposure in service to missile and artillery fire 
as well as generator noise.  Audiological evaluation found 
that the veteran had pure tone thresholds in the right ear 
for the frequencies 500, 1,000, 2,000, 3,000 and 4,000 hertz 
of 15, 25, 20, 30 and 40 decibels, respectively, for a four-
frequency average of 28 decibels.  Pure tone thresholds in 
the left ear, at corresponding frequencies, were 10, 15, 15, 
20, and 30 decibels for a four-frequency average of 20 
decibels.  Speech recognition ability was 84 percent, 
bilaterally.  The veteran's VA audiologist reported that the 
veteran had mild high frequency hearing impairment, 
bilaterally.

Evaluations of hearing impairment are specifically governed 
by 38 C.F.R. § 4.85.  Table VI referenced therein sets out 
numeric designations for hearing impairment.  Because the 
veteran has an average pure tone threshold in the left ear of 
20 decibels and 84 percent speech recognition ability, the 
numeric designation for his left ear hearing loss is II.  As 
service connection is not in effect for the veteran's right 
ear hearing loss and the veteran is not deaf in the right 
ear, the right ear hearing acuity is considered to be normal.  
See 38 C.F.R. § 3.383 (1998) and VAOPGCPREC 32-97 (August 29, 
1997).  For the purposes of rating the veteran's left ear, a 
numeric designation of I is assigned to the right ear.  Table 
VII referenced in 38 C.F.R. § 4.85 assigns percentage 
evaluations for hearing impairment based on the numeric 
designations assigned in Table VI.  A mechanical application 
of the numeric designations of level II hearing in the left 
ear and level I hearing in the non-service connected right 
ear to Table VII results in the assignment of a 
noncompensable evaluation for the veteran's left ear hearing 
loss under Diagnostic Code 6100.  

B.  Mechanical Low Back Disorder

The veteran maintains that his service-connected low back 
disorder is also more disabling than currently evaluated.  
The veteran complains of low back pain and avers that back 
pain prevents him from performing his job to the highest 
degree possible.

Service medical records show that the veteran presented to a 
service department treatment facility in April 1992 with 
complaints of chronic low back pain with increased symptoms 
in the lower back secondary to lifting a heavy tire.  
Following physical examination mechanical low back pain 
secondary to weight was the diagnostic assessment.

On the veteran's January 1997 VA examination, he reported 
that he initially sustained an injury to his back in service 
as a result of falling off a truck.  He added that he 
reinjured his lower back in 1991 when he was working in the 
motor pool and picked up a heavy object.  The veteran said 
that he currently has pain in his back lifting heavy objects, 
standing more than an hour or on walking more than a mile.  
On physical examination of the lumbosacral spine, there was 
no evidence of muscle atrophy, spasm or tenderness.  The 
veteran could forward flex to touch his toes with his 
fingertips; hyperextension, lateral and side bending were 
normal.  The examiner reported that there was no functional 
loss due to pain and no fixed deformity evident.  An X-ray of 
the lumbosacral spine was interpreted to be normal.

Testimony elicited from the veteran at his December 1997 
personal hearing includes a statement that he experiences 
severe back pain radiating to his toes for which he has been 
prescribed medication.  The veteran said that he uses a back 
belt to perform his duties as a nurse's aide.  The veteran 
said he has difficulty with prolonged standing, extended 
walking and with bending.

Private treatment records received at the veteran's hearing 
include a report of an examination of the veteran's back in 
April 1997, which found that the veteran was able to walk on 
his heels and toes without problems.  His gait was found to 
be normal.  Examination of the back in October 1997 found it 
to be sore on flexion and extension.  There was also some 
mild spasm of the paravertebral lumbosacral muscles, 
bilaterally.  A sitting root test was negative for 
radiculopathy and deep tendon reflexes were found to be plus 
two and symmetrical in the lower extremities.  The veteran 
was diagnosed as having chronic back pain in addition to a 
cervical strain.  He was prescribed Robaxin for his back and 
neck pain and given a physical therapy consultation.

The 10 percent rating in effect for the veteran's service-
connected low back disorder under Diagnostic Code 5295 of 
VA's Schedule for Rating Disabilities contemplates 
lumbosacral strain with characteristic pain on motion.  For 
an increased evaluation of 20 percent under this diagnostic 
code, the veteran must exhibit muscle spasm on extreme 
forward bending and loss of lateral spine motion, unilateral, 
in the standing position.  Alternatively, the veteran is 
entitled to a 20 percent disability rating under Diagnostic 
Code 5292 if moderate limitation of motion of the lumbar 
spine is demonstrated.  See Diagnostic Codes 5292 and 5295.

VA examination in January 1997 as well as the private 
examinations provided the veteran in April and October 1997 
demonstrate that the veteran's low back disorder is primarily 
manifested by subjective complaints of pain, some soreness on 
movement and, on one occasion, mild muscle spasm, findings 
which support no more than the current 10 percent rating.

The recent evidence is negative for any findings that the 
muscle spasm noted on one private examination was related to 
extreme forward bending.  Furthermore there is no objective 
evidence of any loss of lateral spine motion attributable to 
the veteran's service-connected back disorder.  Thus the 
finding of mild spasm on one occasion does not mean that the 
condition more closely approximates the criteria for the next 
higher evaluation.  See 38 C.F.R. § 4.7 (1998).  There is 
also no objective limitation of motion.  Indeed, on VA 
examination in January 1997, a full range of motion was 
indicated.  Although the veteran asserts that he has low back 
pain with prolonged or intense activity, the veteran's VA 
examiner specifically discounted functional loss due to pain 
in January 1997.  The Board finds that the veteran's 
complaints of pain are adequately addressed in the evaluation 
currently assigned.  Other functional impairment such as 
weakness, incoordination or excess fatigability is not 
indicated.

In sum, given the facts of this case the Board finds that the 
veteran's service-connected low back disorder essentially 
produces no more than characteristic pain on motion, the 
criteria for a 10 percent rating under Diagnostic Code 5295.

In reaching this determination, the Board has considered 
whether the veteran is entitled to a "staged" rating as 
prescribed in Fenderson v. West, No. 96-947 (U. S. Vet. App. 
Jan. 20, 1999).  However, since each of the ratings described 
above reflects the greatest degree of disability shown by the 
record consistent with the date of the grant of service 
connection, a remand to specifically address the concept of a 
"staged" rating is unnecessary.  Additionally, the Board 
notes that there is no indication that the schedular criteria 
are inadequate to evaluate the conditions under 
consideration.  Here, there has been no showing that the 
veteran's service-connected disabilities have caused marked 
interference with employment, necessitating frequent periods 
of hospitalization, or have otherwise rendered impractical 
the application of the regular schedular standards.  In the 
absence of evidence of such factors, the Board is not 
required to remand this matter to the RO for the procedural 
actions outlined in 38 C.F.R. § 3.321(b)(1).  See Bagwell v. 
Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 
(1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).


ORDER

Service connection for a skin disorder to include tinea 
cruris of the groin and acne vulgaris of the chest wall is 
denied.

An increased (compensable) evaluation for left ear hearing 
loss is denied.

An increased evaluation for mechanical low back pain is 
denied.



		
	J. E. DAY
	Member, Board of Veterans' Appeals




 
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