Citation Nr: 9632945 Decision Date: 11/20/96 Archive Date: 01/31/97 BOARD OF VETERANS' APPEALS DEPARTMENT OF VETERANS AFFAIRS WASHINGTON, DC 20420 DOCKET NO. 94-39 897 DATE NOV 20 1996 On appeal from the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for lichen simplex chronicus with fungal infection and psoriasis of the scalp and ears. 2. Entitlement to an increased (compensable) evaluation for tinea pedis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD William J. Jefferson, Counsel INTRODUCTION The veteran had active service from August 1965 to January 1980, and from March through September 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from the rating decision of the Department of Veterans Affairs (VA) Manila, Philippines, Regional Office. A rating decision in August 1992 denied the veteran's claim of entitlement to service connection for psoriasis and lichen simplex chronicus of the scalp and ears. The decision became final in the absence of a timely appeal. Subsequent to the case being transferred to the Board, the veteran submitted additional evidence to the RO, which, in turn, forwarded the evidence to the Board in October 1996. Pursuant to 38 C.F.R. 20.1304(c) (1995), the Board does not accept this evidence, as it is not "pertinent evidence" addressing the issues before the Board. It is referred to the RO for the appropriate actions. However, the clinical evidence received in October 1996, may be considered a request to reopen a claim for residuals of exposure to Agent Orange. The claim should be considered contemplating new regulations regarding service connection for certain diseases, including prostate cancer, as a residual of exposure to herbicides during service in the Republic of Vietnam. See 61 Fed. Reg. 57586 (1996) (to be codified at 38 C.F.R. 3.309). CONTENTIONS OF APPELLANT ON APPEAL The veteran argues that he has submitted new evidence which establishes that his skin disorder of the scalp and ears is the result of Diamox, a medication that was used as treatment for his service connected glaucoma of the left eye during service. It is also maintained that his tinea pedis disorder is far more disabling than the current noncompensable disability evaluation indicates. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. 7104 (West 1991 & Supp. 1995), 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 new and material evidence has not been submitted to reopen the claim of entitlement to service connection for lichen simplex chronicus with fungal infection and psoriasis of the scalp and ears. It is also the decision of the Board that the preponderance of the evidence is against the veteran's claim for an increased evaluation for tinea pedis. FINDINGS OF FACT 1. The rating decision of August 1992 which denied service connection for psoriasis and lichen simplex chronicus with fungal infection of the scalp and ears is final. 2. Additional evidence which has been received since the August 1992 rating decision denial is either cumulative and redundant, or does not raise a reasonable possibility of changing the outcome of the claim of service connection for psoriasis and lichen simplex chronicus with fungal infection of the scalp and ears. 3. The tinea pedis is not productive of exfoliation, exudation, or itching, involving an exposed surface or extensive area. CONCLUSIONS OF LAW 1. An August 1992 decision denied service connection for lichen simplex chronicus with fungal infection of the scalp and ears; there was no appeal of the decision, and the decision was final; no new and material evidence has been received to reopen a claim of entitlement to service connection for lichen simplex chronicus with fungal infection. 38 U.S.C.A. 5108, 7105 (West 1991 & Supp. 1995); 38 C.F.R. 3.156(a), 20.302(a) (1995). 2. The criteria for an increased (compensable) evaluation for tinea pedis have not been met. 38 U.S.C.A. 1155, 5107 (West 1991 & Supp. 1995); 38 C.F.R. 4.7, 4.118, Diagnostic Code 7806 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. New and Material Evidence for Service Connection for Lichen Simplex Chronicus with Fungal Infection of the Ears and Scalp A rating decision in August 1992 denied service connection for psoriasis and lichen simplex chronicus with fungal infection of the scalp and both ears. The evidence at the time of that rating decision included the veteran's service medical records. The service medical records show that in February 1974, the veteran received treatment for an injury to the left eye. Service medical records reflect that he subsequently developed glaucoma of the left eye as a result of the injury. The glaucoma was treated with Diamox. Service medical records show that glaucoma treatment with Diamox was discontinued in October 1979. The service medical records are negative for any complaints, findings or treatment referable to lichen simplex chronicus with fungal infection and psoriasis of the scalp and ears, Service medical records report treatment for a skin disorder of the feet. A July 1992 statement from a private physician reported that the veteran had received treatment for lichen simplex chronicus and infection of the posterior area of the scalp and both ears. On the basis of the foregoing, the RO, in the August 1992 rating decision, determined that there was no basis to substantiate the claim for service incurrence of psoriasis and lichen simplex chronicus with fungal infection of the scalp and both ears. The veteran was informed of the decision, and forwarded a notice of disagreement. A timely substantive appeal was not received and the claim of service connection for psoriasis and lichen simplex chronicus with fungal infection of the scalp and both ears became final. In May 1994, the veteran requested that his claim for service connection for a skin disorder of the scalp and ears be reopened. Since the August 1992 rating decision, additional evidence has been submitted. Received in May 1994 were clinical records from a service department facility dated from December 1987 through April 1988 reporting treatment for a skin disorder of the scalp, diagnosed as lichen simplex chronicus. A VA medical examination of the skin was performed in June 1994. The veteran reported a 30-year history of a skin disorder involving the scalp and webs of the feet. It was indicated that he had been with the Seabees and claimed positive exposure to chemicals including defoliants. The symptoms included itching, mild-to- moderate itching. The physical examination revealed a dry, scaly, patchy lesion on the scalp. The diagnosis was seborrheic dermatitis of the scalp. Received in August 1994 were previously considered service medical records dating from 1975 to 1979, indicating that the veteran had glaucoma treated with Diamox. Received from the veteran in August 1994 was an excerpt from the Merck Manual concerning treatment, signs, and symptoms of lichen simplex chronicus and psoriasis. The excerpts did not provide any etiological relationship between the aforementioned skin disorders and the use of Diamox. A personal hearing was held at the RO in October 1994. The veteran testified that it was reported in a medical book that Diamox had long-term side effects, and that his skin disorder was one of the side effects. Received in conjunction with the hearing was an October 1994 statement from a private physician reporting that the veteran had received treatment for eye disorders. A VA medical examination of the skin was performed in March 1995. It was indicated that the veteran had a history of pruritic scaly patches on the scalp and ears. The diagnosis was seborrheic dermatitis of the scalp. A VA eye examination was performed in March 1995. The diagnoses included traumatic cataract of the left eye with glaucoma scarring. The examiner opined that the veteran had secondary glaucoma of the left eye due to trauma which would not affect his right eye. It was also reported that the effect of Diamox would not cause blurring or further deterioration of vision. Received in June 1995 was a previously considered service medical record dated in December 1979. Analysis In the case where a final rating board decision has been rendered, additionally submitted evidence must primarily be considered "new and material" or the appellant's claim cannot be reopened. Manio v. Derwinski, 1 Vet.App. 140 (1991). "New and material" evidence is that evidence which has not been previously submitted which bears directly and substantially upon the specific matter under consideration, and which is neither cumulative nor redundant. 38 C.F.R. 3.156(a). To justify the reopening of a claim on the basis of "new and material" evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In the August 1992 rating decision service connection for lichen simplex chronicus and psoriasis of the scalp and ears was denied. The decision became final in the absence of a timely appeal. Since that time additional evidence has been received in an attempt to reopen the claim. In August 1994 and June 1995 previously considered service medical records were received, reflecting treatment for glaucoma, including treatment with Diamox. The Board finds that the aforementioned service medical records are not new in that they are redundant of previously considered evidence. In addition, the Board finds that a statement from a private physician regarding post-service treatment for an eye disorder received in October 1994 is evidence that is not considered relevant or probative to the issue at hand. VA medical examinations of the skin performed in June 1994 and March 1995 revealing a history of a skin disorder of the scalp along with diagnoses of a skin disorder of the scalp is considered new evidence, but is not material evidence in that it is redundant of previously considered contentions and post-service clinical findings noting a skin disorder of the scalp. Clinical records from a military facility dated from December 1987 through April 1988, received in May 1994, revealing post-service treatment for a skin disorder of the scalp is considered new evidence, but it is not material to the present claim. It does not show a connection between current disability and service. There is no possibility that these records could change the outcome of the case. The VA medical examination report of the eyes, performed in March 1995 is new, in that it has not previously been considered and addresses the use of Diamox as treatment for glaucoma. However, the examination report is not considered material in that it does not reveal or establish a causal nexus or etiological relationship between the veteran's skin disorder and the use of Diamox during service for treatment of the service-connected glaucoma of the left eye. The March 1995 medical examination does not change the outcome of the claim. The excerpts from the Merck Manual, received in August 1994, concerning treatment, signs, and symptoms of lichen simplex chronicus and psoriasis is considered new evidence in that it has not been considered previously, and is probative and relevant to the issue at hand. However, this evidence does not specifically address an etiological relationship between the service treatment of glaucoma with Diamox and the veteran's current skin disorder. As a result, the Board finds that the Merck Manual excerpts would not change the outcome of the case. The veteran testified at a personal hearing held in October 1994 that the use of Diamox for treatment of glaucoma during service resulted in a skin disorder of the scalp. It is important to note that where the determinative issue involves medical causation, it has been held lay testimony is not competent, because lay persons generally lack the expertise necessary to opine on matters involving medical knowledge. Grivois v. Brown, 6 Vet.App. 136 (1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). While the veteran's testimony is new, it is not considered material since it is not competent with respect to medical causation. The October 1994 personal hearing testimony would not change the outcome of the case. The Board concludes that the aforementioned evidence, received since the August 1992 rating decision, is not "new and material" and it is not sufficient to reopen the claim of entitlement to service connection for lichen simplex chronicus with fungal infection and psoriasis of the scalp and ears. II. Tinea Pedis A veteran's assertion of an increase in severity of a service- connected disorder constitutes a well-grounded claim requiring the VA fulfill the statutorily required duty to assist 38 U.S.C.A. 5107(a) (West 1991) because it is a new claim and not a reopened claim. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55 (1994) Service medical records report that the veteran received recurrent treatment for a foot disorder diagnosed as "athlete's foot." A VA podiatry examination in April 1980 reported the veteran's complaints of itching and cracking between the toes. Tinea pedis was reported. A VA skin examination performed in August 1989 reported scaling in the interdigital webs of the feet bilaterally. The diagnosis was mild tinea pedis of the feet. A VA medical examination of the feet was performed in June 1994. The veteran complained of lesions of the feet, accompanied by mild- to-moderate itching. There was dry-to-soggy slightly scaly lesions over the interdigital webs of both feet. The diagnosis was tinea pedis, both feet. A VA medical examination of the feet was performed in March 1995. The veteran complained of itching and occasional pain in the feet. A description of the skin revealed that there were scaly patches and whitish, cheesy debris. The diagnosis was tinea pedis. Analysis The Board has considered the entire evidentiary data of record and concludes that the preponderance of the evidence is against the veteran's claim for an increased (compensable) evaluation for tinea pedis. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. 1155. The veteran is currently in receipt of a noncompensable disability evaluation for tinea pedis, analogously considered under 38 C.F.R. 4.119, Diagnostic Code 7806, eczema, slight, if any, exfoliation, exudation or itching, which is on a nonexposed surface or small area. A 10 percent disability evaluation is available under Diagnostic Code 7806, eczema with exfoliation, exudation or itching, if involving an exposed surface or extensive area. The clinical findings show that the veteran has a long history of tinea pedis. The veteran has complained of itching and occasional pain due to the tinea pedis. The clinical data goes on to show that the tinea pedis is limited to the interdigital webs of the feet. Objectively, it has been shown that there are scaly patches and a whitish cheesy debris. However, while there is itching and some evidence of exfoliation, the Board finds that the tinea pedis condition does not involve an exposed surface or extensive area. In essence, the veteran's tinea pedis disability picture does not approximate the criteria necessary for a higher disability evaluation. 38 C.F.R. 4.7. The Board is compelled to conclude that the preponderance of the evidence is against the veteran's claim, and an increased (compensable) evaluation for tinea pedis in not warranted. ORDER New and material evidence has not been submitted to reopen the claim of entitlement to service connection for lichen simplex chronicus with fungal infection and psoriasis of the scalp and ears. The claim of increased (compensable) evaluation for tinea pedis is denied. RENEE M. PELLETIER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, 6, 108 Stat. 740, 741 (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. 7266 (West 1991 & Supp. 1995), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, 402, 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 of Veterans' Appeals.