Citation Nr: 0210072 Decision Date: 08/19/02 Archive Date: 08/29/02 DOCKET NO. 97-05 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased initial evaluation for recurrent cellulitis/lymphangitis, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD T. Francesca Craft, Associate Counsel INTRODUCTION The veteran served on active duty from September 1989 to September 1994. Prior to this term of service, the veteran had 14 years and six months of active service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1996 rating decision from the Department of Veterans Affairs (VA) regional office (RO) in St. Petersburg, Florida, by which the RO granted service connection for recurrent cellulitis/lymphangitis with an initial evaluation of 30 percent. In accordance with Fenderson v. West, 12 Vet. App. 119 (1999), the issue in this case has been rephrased to reflect that the veteran is appealing the initial evaluation assigned for his service- connected for recurrent cellulitis/lymphangitis. The Board previously reviewed this matter in May 1998 and remanded the claim to the RO for further evidentiary development. A preliminary review of the file indicates that the RO took all necessary steps to complete the requested development. FINDINGS OF FACT 1. The VA has fulfilled its duty to assist the veteran in the development all facts pertinent to his claims. 2. All available, relevant evidence necessary for an equitable disposition of the veteran's appeal that can be obtained by VA has been obtained by the RO. 3. The old schedular criteria of Diagnostic Code 6305 for evaluating recurrent cellulitis/lymphangitis are more favorable to the veteran prior to January 12, 1998, in this case; the new criteria are more favorable from January 12, 1998. 4. The veteran's residual of recurrent cellulitis/lymphangitis is manifested as swelling in the left leg. CONCLUSION OF LAW The schedular criteria for an evaluation in excess of 30 percent for residuals of recurrent cellulitis/lymphangitis have not been met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 2001); 38 C.F.R. §§ 3.321(a), 4.1, 4.2, 4.6, 4.7, 4.20 (2001); § 4.88b, Diagnostic Code 6305 (1996) (effective prior to August 30, 1996); § 4.88b, Diagnostic Code 6305 (2001) (effective from August 30, 1996). § 4.104, Diagnostic Code 7121 (1997) (effective prior to January 12, 1998); § 4.104, Diagnostic Code 7121 (2001) (effective from January 12, 1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background Duty to Assist On November 9, 2000, the President of the United States signed H.R. 4864, the "Veterans Claims Assistance Act of 2000." Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000). The Act reaffirms and clarifies the duty of the Secretary of Veterans Affairs to assist claimants in developing evidence pertinent to their claims for VA benefits. It eliminates the previous requirement that a claim be well-grounded before VA's duty to assist arises. The Act requires the Secretary to make reasonable efforts to assist a claimant in obtaining evidence to substantiate his or her claim unless it is clear that no reasonable possibility exists that the Secretary's assistance would aid in substantiating the claim. Upon careful review of the claims folder the Board finds that all required notice and development action specified in this new statute have been complied with during the pendency of the current appeal. Specifically, the Board finds that the January 1997 statement of the case and the December 2000 supplemental statement of the case specifically satisfy the requirement at § 5103A of the new statute in that they clearly notify the veteran of the applicable rating criteria and the evidence necessary to substantiate his claim. The veteran was afforded multiple thorough VA examinations. Finally, the veteran has had the opportunity to submit evidence and argument in support of his claim. In this regard, the RO requested, by letter dated in June 1998, records of treatment since 1995 or pertinent releases, to which, the veteran never responded. Furthermore, in the hearing memorandum dated in June 2002, the veteran's representative indicated that there was no further evidence. Since the record is complete, the requirement that the RO advise the veteran as to the division of responsibilities between VA and the veteran in developing the record is moot. No further assistance is necessary to comply with the requirements of the VCAA or any other applicable rules or regulations regarding the development of the pending claim. Therefore, there is no indication that the Board's present review of the claim will result in any prejudice to the claimant. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Legal Criteria Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991 & Supp. 2000); 38 C.F.R. § 4.1 (2001). Separate diagnostic codes identify the various disabilities. The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim, it is allowed. Id. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2001). Where there is a question as to which of two evaluations shall be applied, the higher the evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2001). Where the particular disability for which the veteran has been service connected is not listed, it may be rated by analogy to another disease that is closely related, in which the functions affected, the anatomical location and symptomatology are all closely analogous. 38 C.F.R. §§ 4.20, 4.27 (2000). See Lendenmann v. Principi, 3 Vet. App. 345, 349-350 (1992); Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The veteran's service connected recurrent cellulitis/lymphangitis was evaluated by analogy under 38 C.F.R. § 4.88a, Diagnostic Code 6305 (Filariasis). The VA Schedule of Ratings for Systemic Diseases, 38 C.F.R. § 4.88a, was amended effective August 30, 1996. Under the new regulation, the criteria for evaluation of systemic diseases have substantially changed. The veteran's service-connected filariasis is currently evaluated under the rating criteria in effect prior to August 30, 1996, 38 C.F.R. § 4.88a, Diagnostic Code 6305, and a 30 percent rating is assigned. The U.S. Court of Appeals for Veterans Claims (known as the U.S. Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that a liberalizing change in a regulation during the pendency of a claim must be applied if it is more favorable to the claimant, and if the Secretary has not enjoined its retroactive application. See Marcoux v. Brown, 10 Vet. App. 3, 6 (1996), citing Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The RO has reviewed the veteran's claim under both the old and amended rating criteria applicable to systemic diseases. Some of the criteria under the old regulations might be more liberal than under the new criteria; accordingly, the Board will also consider this case under both. Under Diagnostic Code 6305, filariasis, in effect prior to August 30, 1996, an initial 100 percent rating is warranted for infection with severe lymphangitis or lymphadenitis; if there is evidence of chronic, repeated recurrences and tendency to severe multiple involvement of extremities and genitalia or severe lymphadenitis, a 100 percent is also warranted. A 60 percent rating is for application if there is chronic filariasis with repeated recurrences and beginning permanent deformity of one or more extremities or genitalia or moderate lymphadenitis. Symptomatic filariasis, following any recurrence, will be rated 30 percent disabling. A noncompensable rating will be assigned when there is evidence of subsistence of symptoms following only one attack. Note to Diagnostic Code 6305 provides that the following ratings may be combined among themselves to cover multiple involvement but are not to be combined with the preceding ratings of this code: permanent deformity of an extremity or of the genitalia: 60 percent rating if the deformity is severe, 30 percent if it is moderate, and 10 percent if it is mild. Under Diagnostic Code 6305, lymphatic filariasis, in effect on August 30, 1996, a 100 percent rating will be assigned if there is evidence of active disease; thereafter, the disability is to be rated as residuals such as epididymitis or lymphangitis under the appropriate system. The veteran was evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7121, post-phlebitic syndrome of any etiology, because there was no directly applicable diagnostic code under the appropriate system for rating of the veteran's residuals. The rating criteria for peripheral vascular disease were also revised in a December 1997 regulatory change. Effective January 12, 1998, a 20 percent evaluation is provided for post-phlebitic syndrome of any etiology where there is persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent evaluation is assigned where there is persistent edema and stasis pigmentation or eczema with or without intermittent ulceration. A 60 percent evaluation is appropriate where there is persistent edema or subcutaneous induration, stasis pigmentation or eczema and persistent ulceration. A 100 percent evaluation is assigned in the case of massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104, Diagnostic Code 7121. The criteria for these evaluations is exactly the same if rated as varicose veins under Diagnostic Code 7120. Prior to January 1998, phlebitis or thrombophlebitis was evaluated as 30 percent disabling where there was persistent swelling of the leg or thigh, increased on standing or walking one or two hours, readily relieved by recumbency; moderate discoloration, pigmentation and cyanosis or persistent swelling of the arm or forearm, increased in the dependent position; moderate discoloration, pigmentation, or cyanosis. A 60 percent evaluation was assigned for persistent swelling, subsiding only very slightly and incompletely with recumbency elevation with pigmentation cyanosis, eczema or ulceration. A 100 percent evaluation was assigned for massive board like swelling with severe and constant pain at rest. 38 C.F.R. § 4.104, Diagnostic Code 7121. Evidence Historically, service medical records reflect a diagnosis of cellulitis, left lower extremity, for which the veteran was hospitalized on numerous occasions, including September 1986, October-November 1986, December 1986, January-February 1987, July 1989, October 1990, August 1992, September 1992, June 1993, June 1994. The veteran underwent several medical boards, for which, recurrent cellulitis was the primary diagnosis. VA Form 21-526 indicates the veteran filed for service connection for recurrent cellulitis in July 1995. As noted previously, a November 1996 rating decision reflects a grant of service connection for recurrent cellulitis with an effective date of October 1, 1994. The veteran underwent a VA compensation and pension (C&P) examination in September 1995. The report appears incomplete. The report indicates a history of recurrent cellulitis beginning in 1976, and necessitating at least 20 hospitalizations, including treatment by IV antibiotics. Physical examination of the lower extremities revealed no swelling, deformity, or calf tenderness. The pertinent diagnosis was history of recurrent cellulitis of the lower extremities. VA outpatient records indicate that the veteran sought treatment in February 1996, complaining that his left leg and foot had been swollen and he had burning pain in both hips for four weeks. He reported that in January he had been hospitalized for one week at the Naval Hospital and was treated with intravenous (IV) antibiotics, then discharged on Cipro. He stated that he had stopped the medication four days early due to bilateral hip pain. He was seeking a second opinion. Physical examination showed that the left leg and foot were swollen. They were not red or warm to touch. Circumference of the left lower extremity was greater than circumference of the right lower extremity; the left foot was 3+ swollen without erythema. The diagnoses were recurrent cellulitis- left lower extremity and rule out thrombophlebitis. VA outpatient records reveal the veteran was referred for a surgical consultation for cellulitis of the left lower leg in February 1996. The medical history essentially duplicated the information given when he sought a second opinion earlier in the month. Physical examination revealed a fungal rash on the right foot. The left lower extremity had woody edema and was enlarged. There was minimal calf tenderness. There was no cellulitis, four nodes, distal pulse +1 left and +2 right. Motor strength was normal, 5/5. The assessment was chronic venous stasis (no cellulitis), left leg and right foot fungal infection. The veteran had another surgical consultation in March and voiced the same complaints. The text of the March surgical consultation are substantially undecipherable. The veteran was admitted for treatment at Naval Hospital Pensacola in April 1996 for treatment of cellulitis. His chief complaint was fever, erythema, and swelling of his lower left extremity. The history of present illness revealed that the veteran had chronic tinea pedis and recurrent cellulitis of the left lower extremity that reportedly required 18 prior hospitalizations. The veteran reported that on the day of admission, he had awakened with erythema, swelling of his left leg, a low grade fever, and chills. He denied trauma or diabetes. He stated that he had undergone vascular studies for deep vein thrombosis, which were reportedly negative. He denied vascular insufficiency or any other vascular problems. The most recent admission for cellulitis occurred in January 1996. Past medical history indicated alcoholism in remission and tobacco use at a rate of 3/4-pack per day for 26 years. Physical examination of the lower extremities showed 2+ pulses. There was a dry intertriginous eruption on both feet extending to the dorsum of the foot, marked erythema, swelling, and warmth of the left leg from the toes to about one centimeter (cm) below the patella. He had no palpable cord and negative Homan sign. The veteran was treated with intravenous antibiotics and an anti-fungal medication orally. Erythema, swelling, and pain decreased with treatment. He was discharged with instructions to complete a course of antibiotics and continue with his anti-fungal medication, and to telephone if symptoms returned. The veteran was admitted for treatment at Naval Hospital Pensacola in July 1996 for treatment of recurrent left lower extremity cellulitis and chronic tinea pedis of both feet. The veteran's chief complaint was pain in his left leg and fever. The history of present illness disclosed that the veteran returned home from work the night before and went to sleep. When he awoke the next afternoon, his leg was red and tender and painful to walk on. He also had fever and chills. He denied any recent trauma to his leg, bites, or scratches. He denied shortness of breath and related no history of deep vein thrombosis or "PE" (possibly pulmonary edema). There was no recent history of immobilization or family history of clotting disorder. The veteran gave a history of 26-pack- years. His last admission was in April and a February Doppler ultrasound of his left lower extremity was interpreted to show no evidence of deep vein thrombosis. Physical examination of the lower extremities showed the left and right lower extremity both measured 36.5 cm. The left lower extremity, however, was erythematous from his intermalleolar line to approximately 10 cm below the tibial tubercle. It was warm to touch. There was no palpable cord, pitting edema, or cyanosis. Distal pulses were 2+ and palpable. There was evidence of healing tinea infection on both feet with onychomycosis. The veteran reported dramatic improvement of the infection with treatment. Treatment consisted of IV antibiotics and scraping of feet. The veteran defervesced and his white blood count decreased by over half at the time of discharge; swelling and erythema had decreased. The veteran underwent a VA C&P examination in July 1996. The medical history revealed that he first developed cellulitis in his left leg some time in 1976 and at that time, the cellulitis was thought to be secondary to a fungal infection present between the toes of both feet. The veteran has had over 30 episodes of cellulitis and has been hospitalized on three occasions for seven days each. The veteran had recent treatment at the Naval Hospital Pensacola and was treated with IV Cefazolin and Itraconazole, an antifungal drug. He currently was continuing with Itraconazole 200 milligrams (mg) twice a day for seven days out of each month for a period of four months. Physical examination of his lower extremities revealed edema of the left leg and at the ankles. Compared to the right leg, there was two-cm of edema in the left foot and one-cm of edema in the left leg. No tenderness in the calf was observed. A small area of thickening skin and a slight degree of erythema and some scaling were noted at the interdigital area between the second and third toe of the left foot. A rather large oval area covering a good part of the instep and extending to the areas between the first and second toe, the second and third toe, and the third and fourth toe, is slightly edematous, pink to red in color, and has slightly raised and thickened skin. There are palpable nontender enlarged inguinal lymph nodes on the left side; there are no other palpable lymph nodes. The pertinent diagnoses are as follows: 1. Long history of recurrent cellulitis in the left foot with the most recent episode one week before the examination; 2. Etiology of cellulitis is thought to be a fungus infection between the toes as previously described; 3. Allergic dermatitis in the interdigital spaces in the left foot. The examiner concluded that there are at least three problems, including the allergic dermatitis, which might be a contact dermatitis of the foot, then the fungus infection, leading to recurrent cellulitis. The examining physician also found evidence of the spread of the infection to the inguinal lymph nodes of the left side and edema, which he opined, showed that the veteran had at least lymphangitis and possible some phlebitis in the veins of the calf. The veteran underwent a VA C&P examination in June 2000. The examiner reviewed the C-file, including his examination of the veteran in July 1996. He noted from his review of the records that the veteran has had "very extensive and carefully thought-out studies" that included a CT of the abdomen and pelvis to examine the pelvic lymph nodes that were possibly involved in the intermittent episodes of cellulitis and lymphangitis dating back to 1976. He further noted that numerous episodes of cellulitis and acute lymphangitis, principally involving the left leg, were well documented in the service medical records since 1976. The portal of entry for the infections was thought to be a chronic fungus infection of the soles of the feet and about the webs of the toes. The veteran had been treated with a variety of antibiotics and antifungal drugs. The veteran reported that since his C&P examination in 1996, he has had no further episodes of acute cellulitis, nor has he been hospitalized for that condition. He stated that he is not currently taking any medication for his left leg or treating any chronic fungus infection of his feet. He reported that he currently works in building construction. He stated that he had lost no time from work due to cellulitis. The physical examination of his legs showed only a slight degree of measurable edema, which appeared at the ankles. The left ankle measured 27 cm in diameter and the right ankle measured 24.5 cm in diameter. At the malleoli, the left ankle measured 30.8 and the right ankle measured 27 cm. At the instep of the great arch, the left foot measured 27.5 cm and the right foot, 26 cm. The skin of the thigh and calf was normal and no dilated veins or abnormal blood vessels were palpated. Pedal pulses were normal. Maceration and peeling of skin were noted in the webs between the third and fourth, and the fourth and fifth toes, more on the left foot than the right. There was dystrophy of the right great toenail and there is a history of the nail being removed because of fungus infection a few years earlier. The nail has grown back with some distortion. The left great toenail had also been removed and has grown back somewhat distorted. The diagnoses were (1) chronic lymphatic insufficiency of the left leg as a result of past episodes of cellulitis and acute lymphangitis. The amount of edema seen upon examination was slight, but measurable. The examiner noted that the examination was conducted at the end of the veteran's workday; (2) Peripheral blood vessels are normal in both legs; and (3) No skin abnormality of the lower extremities except for a mild degree of maceration and peeling in the webs of the toes at the fourth and fifth, and the third and fourth toes of each foot. There is also some involvement of the fungal infection in the great toenails, particularly in the right foot. The examiner concluded that there was no evidence of acute cellulitis or acute infection. The only abnormality was a slighter amount of measurable swelling, but this caused the veteran no discomfort or significant complaint; the veteran did not include this in the course of history taking. The veteran indicated that he did not experience any problems performing his construction work; therefore, the examining physician concluded that there was no functional or social impairment as a result of past infections. II. Analysis A review of the record indicates that the veteran is appropriately rated at 30 percent under Diagnostic Code 6305 of the old regulations. The evidence demonstrates that acute episodes of the veteran's chronic cellulitis and lymphangitis are manifested by symptoms of erythema, swelling of his left leg, pain with walking, a low grade fever, and chills; however, the veteran's only residual of the active disease is slight swelling. A 100 percent rating is not warranted because the initial infection of acute cellulitis occurred at 15 to 25 years ago and the veteran has had recurring infections through July 1996. Episodes of the veteran's cellulitis have only involved one extremity at any given time and have never involved his genitalia. A 60 percent evaluation is not warranted because the veteran's recurring cellulitis and lymphangitis have not initiated the development of a deformity of his left leg or his genitalia. Evaluation of the veteran's residuals under the new regulation requires consideration under the appropriate system. Since there was no analogous disease under § 4.88b (Infectious diseases, immune disorders and nutritional deficiencies), 38 C.F.R. § 4.104, Diagnostic Code 7121 under the cardiovascular system appeared to provide the best analogous disease. The newer version, effective January 12, 1998, is most favorable to the veteran because it provides for a 40 percent evaluation in addition to 60 and 100 percent, and the old regulation requires pigmentation cyanosis for a 60 percent evaluation, which was never found upon the veteran's examinations. Consequently, Diagnostic Code 6305 of the new regulation is more favorable to the veteran beginning in January 1998, because Diagnostic Code 7121 does not require the beginning of a deformity. The veteran does not, however, meet the criteria for a 40 or 60- percent evaluation under the new regulation because the only residuals found in the most recent examination was slight measurable edema. Criteria, such as stasis pigmentation or eczema were not found upon examination in 2000; eczema was not found upon examination in 1996. A 100 percent evaluation is not warranted because massive board-like edema is required. In deciding the veteran's increased rating claims, the Board has considered the Court's determination in Fenderson v. West, 12 Vet. App. 119 (1999), and whether he is entitled to increased evaluations for separate periods based on the facts found during the appeal period. In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board finds that the evidence supports the conclusion that there was no actual variance in the severity of the veteran's service-connected recurrent cellulitis/lymphangitis during the appeal period that would sustain a rating higher than 30 percent for any time frame. Accordingly, the Board does not find evidence that the veteran's disability evaluations should be increased for any separate period based on the facts found during the appeal period. Finally, the Board concludes that the evidence of record does not demonstrate that the veteran's service-connected recurrent cellulitis/lymphangitis cause him unusual or exceptional hardship so as to warrant application of 38 C.F.R. § 3.321(b)(1) (2001). In this regard, the veteran reported that recurrent cellulitis/lymphangitis does not interference with his employment in any way. The medical evidence in this case is simply overwhelmingly against the claim. In such circumstances, the benefit of the doubt doctrine is not for application. ORDER Entitlement to an increased initial evaluation for recurrent cellulitis/lymphangitis, in excess of 30 percent is denied. V. L. Jordan Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.