Citation NR: 9738525 Decision Date: 11/18/97 Archive Date: 12/02/97 DOCKET NO. 96-42 258A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased evaluation for a fungal infection of the groin and feet, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran served on active duty from October 1952 to July 1954. This matter comes before the Board of Veterans' Appeals (Board) from an August 1996 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which had awarded service connection for a fungal infection of the groin and feet at a noncompensable evaluation. Following a hearing before the RO in November 1996, the evaluation was increased to 10 percent in April 1997. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, essentially, that he has had a rash on his feet and in his groin area for over 40 years, ever since service in Korea. This condition flares up intermittently despite the fact that he has treated it with prescribed creams and ointments, as well as any over-the-counter substances that he believes will alleviate the itching and discoloration. He states that the condition warrants an increased rating. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), 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 preponderance of the evidence is against the veteran’s claim for an evaluation in excess of 10 percent for a fungal infection of the groin and feet. FINDING OF FACT The veteran’s fungal infection of the groin and feet is currently manifested by complaints of itching in the groin area and objective findings of extensive hyperpigmentation of the upper thigh areas on the inner aspect bilaterally, with some spotty areas of deep pigmentation, and hyperkeratosis of the skin of both feet with possible fungal infection of the toenails, but no active lesions seen in either location. CONCLUSION OF LAW The schedular criteria for a disability rating in excess of 10 percent for a fungal infection of the groin and feet have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 4.118, Diagnostic Code 7806 (1996). REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that the veteran's claim for an increased evaluation for a fungal infection of the groin and feet is well grounded within the meaning of 38 U.S.C.A. § 5107. A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Since the Board is satisfied that all relevant and available facts have been properly developed, no further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. Although the Board must consider the whole record, see 38 C.F.R. § 4.2 (1996), where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. Therefore, those documents created in proximity to the recent claim are the most probative in determining the current extent of impairment. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994). In June 1995, the veteran was afforded a dermatology consultation for tinea, which was resistant to treatment with clotrimazole. The veteran complained of scaling of the feet for many years. Treatment with clotrimazole had provided only mild relief, although he had not applied it between the toes. He also complained of a rash in his groin which was constantly pruritic. Examination of the feet revealed scaling and erythema, but no abnormality of the toenails. Examination of the groin disclosed a lichenified, depigmented, and peripherally hyperpigmented area. The diagnosis was tinea pedis and tinea curis. A report of an outpatient visit in March 1996 disclosed that the tinea cruris with lichen simplex chronicus was only mildly pruritic with treatment with clotrimazole. Examination of the groin showed mottled hypo- and hyperpigmented macules, but no scaling. There was lichenification. The scaling of the feet was reduced. The assessment was tinea pedis, improved, and hyperpigmentation in the groin with lichenification. A VA dermatology examination in May 1996 noted that the groin and inner aspect of the thigh appeared hyperpigmented compared to the rest of the skin. In the center of the hyperpigmented area was an area of erythema and loss of pigmentation with some mild edema associated with it. The diagnosis was intertriginous fungal infection. Both feet were normal in appearance with no deformities detected. There was a yellow discoloration of the toenails with some thickening present. Sensation was normal, although on testing to light touch the veteran reported that the stimulus felt “funny.” The examiner reported that he was unable to find any pathology of the feet on examination. The symptoms could possibly be related to diabetic neuropathy, but this was unlikely since the veteran had complained of the symptoms since 1953. Based on the above evidence, the RO granted service connection for tinea cruris of the groin and tinea pedis of the feet at a noncompensable evaluation, effective from April 1996. The veteran submitted a notice of disagreement with this evaluation in September 1996. In November 1996, the veteran testified at a hearing before the RO. He stated that he had had these conditions for over 40 years and had just about given up on them. Although he had used various ointments and creams, the infection would flare up intermittently, causing intense itching in his groin and dry, raw, flaky skin on his hands and feet. He added that his feet had a bad odor. A November 1996 VA outpatient report described the groin rash as a rather well-defined, dark brown, scaling plaque with areas of depigmentation within it. Examination of the feet found that the tinea pedis had resolved, but the veteran had onychomycosis, a fungal infection of the toenails. Both conditions were to be treated with creams. A follow-up for the rash in the groin area noted that the veteran still complained of itching. Examination and assessment noted a chronic lichenified dermatitis, described as lichen simplex chronicus. A subsequent VA skin examination in December 1996 revealed a slight increased pigmentation on the dorsum of both hands and a thickening of the skin of the palms, with some peeling on the index fingers. Examination of the inguinal area revealed extensive hyperpigmentation of the entire upper thigh areas on the inner aspect bilaterally, with some spotty areas of deep pigmentation. The examiner did not detect any active lesions at that time. The veteran complained of severe itching. Examination of both feet revealed some trophic changes in the nails and a marked thickening of the skin of both soles of the feet. No active lesions were seen between the toes or elsewhere on the feet. The examiner stated that he was not certain whether the nail problems were related to an old onychomycosis or to frostbite injury. The relevant diagnoses were tinea cruris and hyperkeratosis of the skin of both feet. The Board has examined photographs of the groin and feet submitted in connection with this examination. These showed pigmentation abnormalities in the groin area and discoloration of the toenails. Based upon this evidence, the RO increased the evaluation for this disorder from noncompensable to 10 percent, effective from April 1996, the effective date of the grant of service connection. Although the veteran did not respond to the supplemental statement of the case awarding this benefit, the Board notes that where there is no clearly expressed intent to limit an appeal to entitlement to a specific disability rating for a service-connected condition, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit does not abrogate the pending appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the issue is properly before the Board. Disability evaluations are administered under the Schedule for Rating Disabilities which is designed to compensate a veteran for reductions in earning capacity as a result of injury or disease sustained as a result of or incidental to military service. See 38 U.S.C.A. § 1155; Bierman v. Brown, 6 Vet. App. 125, 129 (1994). In evaluating a disability, the VA is required to consider the functional impairment caused by the specific disability. 38 C.F.R. § 4.10 (1996). Each disability must be evaluated in light of the medical and employment history, and from the point of view of the veteran's working or seeking work. See Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The veteran is currently evaluated for a fungal infection of the groin and feet under 38 C.F.R. § 4.118, Diagnostic Code 7806. This code provides that with ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or an exceptionally repugnant condition, a 50 percent evaluation is warranted. If there is exudation or itching with constant extensive lesions or marked disfigurement, a 30 percent evaluation is warranted. With exfoliation, exudation or itching, if involving an exposed surface or extensive area a 10 percent rating is warranted. The disorder is noncompensable when there is slight, if any, exfoliation, exudation, or itching on a nonexposed surface or small area. Recent examinations have revealed extensive hyperpigmentation of the entire upper thigh areas on the inner aspect bilaterally, with some spotty areas of deep pigmentation, but no active lesions. The veteran still complained of itching in the groin area. Examination of the feet disclosed that the tinea pedis had resolved, but abnormalities remained, which were thought to be either a fungal infection of the toenails or hyperkeratosis of the skin of both feet. Neither examiner noted active lesions, either in the groin area or on the feet. In comparing these symptoms with the rating code, the Board points out that none of the VA examiners observed the extensive, active lesions or exudation required for a 30 percent evaluation, despite the veteran’s complaints of an annoying itching in the groin area. Although the disorder of the groin had been described as covering a rather extensive area, it was not on an exposed surface and thus would not cause a marked disfigurement. The fungal infection of the feet had almost entirely resolved with treatment. In the absence of a degree of symptomatology equating to a 30 percent evaluation, the Board concludes that an evaluation in excess of 10 percent is not warranted under 38 C.F.R. § 4.118. Accordingly, an evaluation in excess of 10 percent for a fungal infection of the groin and the feet is denied. Finally, with respect to this claim, the Board has also considered the applicability of the reasonable doubt doctrine, but finds that since the evidence is not in relative equipoise, the claimant may not prevail. Since the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). ORDER An evaluation in excess of 10 percent for a fungal infection of the groin and feet is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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. - 2 -