93 Decision Citation: BVA 93-18250 Y93 BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 DOCKET NO. 92-18 604 ) DATE ) ) ) THE ISSUES 1. Entitlement to service connection for bilateral defective hearing. 2. Whether the rating decision of March 6, 1970, was clearly and unmistakably erroneous in denying service connection for defective hearing. 3. Entitlement to an evaluation in excess of 10 percent for tinea pedis with onychomycosis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Johnston, Associate Counse INTRODUCTION The veteran had active service from June 1943 to December 1946. He served in combat in Europe during World War II and was awarded the European-African-Middle East Campaign Medal with four Bronze Battle Stars, and the Purple Heart Medal. The issue of service connection for bilateral defective hearing comes before the Board of Veterans' Appeals (Board) on appeal from an April 1992 rating decision of the Columbia, South Carolina, Department of Veterans Affairs (VA) Regional Office (RO). A notice of disagreement was received in August 1992, and a statement of the case was issued in September 1992. A substantive appeal was received in September 1992. The issue of an evaluation in excess of 10 percent for service- connected tinea pedis comes before the Board on appeal from a May 1991 rating decision of the RO. A notice of disagreement was received in November 1991, and a statement of the case was issued in December 1991. A substantive appeal was received in January 1992. A hearing was conducted at the RO in March 1992, and the hearing officer's decision was issued in April 1992. In her decision, the hearing officer increased the veteran's evaluation for tinea pedis from 0 percent to 10 percent. That decision was effected in an April 1992 rating decision, and a supplemental statement of the case was issued in May 1992. The veteran filed a substantive appeal of that decision in May 1992. The veteran is represented by The American Legion which submitted written argument on his behalf. The case is now ready for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO erred in not awarding him an evaluation in excess of 10 percent for service-connected tinea pedis because his feet hurt and burn most of the time. He also points out that his face and ears were severely burned during service in World War II, and that his ears required numerous external and internal reconstructive surgeries thereafter. He contends that these injuries and multiple reconstructive surgery resulted in bilateral defective hearing. He also asserts that the RO committed error in not finding that the March 6, 1970 rating decision, which denied service connection for defective hearing, was clearly and unmistakably erroneous. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims folder, and for the following reasons and bases, it is the decision of the Board that the March 6, 1970 rating decision by the RO was clearly and unmistakably erroneous in denying entitlement to service connection for left ear defective hearing but that it was not clearly and unmistakably erroneous in denying service connection for right ear defective hearing. It is also the decision of the Board that, pursuant to the veteran's reopened claim, there is an approximate balance of positive and negative evidence regarding the claim for service connection for right ear defective hearing. It is also 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 service-connected tinea pedis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The unappealed rating decision of March 1970, which denied service connection for defective hearing, was supported by the evidence regarding right ear hearing acuity but was not supported by the evidence regarding left ear hearing acuity. 3. Pursuant to the veteran's reopened claim, there is an approximate balance of positive and negative evidence as to whether the veteran's right ear defective hearing is causally related to injuries received during his military service. 4. Tinea pedis results in periodic itching and burning, marked scaling, erythema, and onychomycosis but does not involve an exposed surface or extensive area, or extensive lesions or marked disfigurement. 5. Tinea pedis with onychomycosis does not produce an exceptional or unusual disability picture with such related factors as the need for frequent hospitalization or marked interference with employment. CONCLUSIONS OF LAW 1. The unappealed rating decision of March 1970 was not clearly and unmistakably erroneous in denying service connection for right ear defective hearing but the decision was clearly and unmistakably erroneous in denying service connection for left ear defective hearing. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.105(a) (1992). 2. Left ear hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(a) (West 1991); 38 C.F.R. §§ 3.303(d), 3.385 (1992). 3. Right ear defective hearing was incurred during wartime service. 38 U.S.C.A. §§ 1110, 1154(a), 5107(a)(b) (West 1991); 38 C.F.R. §§ 3.102, 3.303(d), 3.385 (1992). 4. The criteria for a rating in excess of 10 percent for tinea pedis with onychomycosis have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.1, 4.3, 4.7, Diagnostic Code 7813 (1992). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a), in that they are plausible. All of the facts have been properly developed and no further assistance is necessary to comply with the duty to assist required by law. Id. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110. Service connection may be granted for sensorineural hearing loss, which becomes manifest to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1992). Service connection may also 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). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by the veteran's service record, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). In the case of any veteran who engaged in combat with the enemy in active service with a military organization of the United States during a period of war, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred in such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence in service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). Service connection for impaired hearing shall not be established when the thresholds for the frequencies of 500, 1,000, 2,000, 3,000, and 4,000 Hertz are all less than 40 decibels; the thresholds for at least three of these frequencies are 25 decibels or less; and, speech recognition scores using the Maryland CNC test are 94 percent or better. 38 C.F.R. § 3.385. Finally, when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In June 1943, the veteran's hearing acuity was found to be normal by voice testing during his induction physical examination. In March 1945, at Remagen bridgehead in Germany, the veteran's tank was struck by an enemy 88-millimeter shell, and the fuel tanks burst and ignited. The veteran pulled himself from the burning tank and fell to the ground, which was covered with burning fuel. He stood and ran from the area, his clothing on fire. Fellow servicemen helped extinguish the flames and provided immediate medical treatment. The veteran incurred severe first, second, and third degree burns about the head, face and both wrists. He also received shrapnel wounds. Among other facial damage, the upper half of the helix of each ear was burned away. Multiple reconstructive and plastic surgeries were subsequently conducted to repair the veteran's ears, both externally and internally. In April 1946, cartilage was implanted in the mastoid area of the left ear, and in May 1946, a cervical tube was formed on the left. In May and June 1946, cervical tubing was migrated to the mastoid region. In July 1946, cartilage was implanted in the right ear, a skin graft of the right mastoid was performed, and the left cervical tube was further migrated to the left ear. In August 1946, a tube on the helix of the right ear was implanted. Several days after this operation, a hematoma was evacuated from the site of the operation and the ear began a chronic purulent drainage from a hole in the middle of the helix of the right ear. The veteran appeared to have lost a small amount of cartilage from this ear as a result of infection. In September 1946, the entire cartilage graft of the right ear was removed because of the infection. By October 1946, all drainage from the right ear had ceased and the ear was completely healed. The veteran was medically discharged in December 1946. Although the veteran received considerable treatment and surgery for the reconstruction of his burned ears, the service medical records contain no complaint, finding, or treatment for defective hearing. In May 1947, shortly after service, a VA audiometric examination was conducted using American Standards Association (ASA) audiometric standards which were in use at the time. The ASA pure tone thresholds for the frequencies of 250, 500, 1,000, 2,000, and 4,000 Hertz were 15, 15, 10, 15, and 10 decibels for the right ear, and 15, 20, 20, 20, and 10 decibels for the left ear. Speech recognition testing was not conducted. Additionally, a special eye, ear, nose, and throat examination indicated that the eardrums were normal and that hearing of ordinary conversation and whispered voice was 20/20, bilaterally. In March 1979, a VA audiometric examination indicated that the veteran's hearing was normal except for abnormal pure tone thresholds at 4,000 Hertz for each ear. In November 1990, a VA audiometric examination showed that the veteran had mild sloping to severe sensorineural hearing loss at the frequencies of 3,000 Hertz and above for the right ear, and moderately severe to severe sensorineural hearing loss at the frequencies of 3,000 Hertz and above for the left ear. Speech recognition was 94 percent for the right ear and 78 percent for the left ear. In July 1992, a VA audiological examination confirmed bilateral high frequency sensorineural hearing loss and speech recognition was 92 percent bilaterally. In September 1969, the veteran claimed service connection for defective hearing. In a March 1970 rating decision, the RO denied service connection for defective hearing on the basis that the veteran's service medical records were silent for defective hearing, and the May 1947 audiometric testing showed normal hearing. That rating decision was not appealed. At the time of that decision, the provisions of 38 C.F.R. § 3.385 were not in effect. The guidance then governing the evaluation of hearing acuity was paragraph 50.07 of the Department of Veterans Benefits Manual M21-1, which provided that hearing acuity would be considered within normal limits for service connection purposes where speech discrimination was 92 percent, and where the pure tone thresholds at 250, 500, 1,000, 2,000, and 4,000 Hertz were all less than 30 decibels, with at least 3 of the frequencies 15 decibels or less. The decibel levels specified in the M21-1 were ASA values. The ASA pure tone thresholds reported in the 1947 VA examination showed that the veteran had left ear defective hearing because no three relevant frequencies were 15 decibels or less. On the other hand, the veteran's right ear hearing was correctly found to be within normal limits. The RO's March 1970 rating decision constituted an administrative failure to apply the correct provisions, then in effect, in evaluating the veteran's left ear hearing acuity for service connection. 38 C.F.R. § 3.105(a). However, the RO properly assessed the veteran's right ear hearing acuity to be normal under the criteria articulated in M21-1, then in effect. Id. Inasmuch as we find no clear and unmistakable error in the 1970 denial of service connection for right ear hearing loss, we must consider whether service connection is warranted based on the reopened claim. Although the service medical records contain no evidence of defective hearing, there appears to have been no service separation hearing test provided. The May 1947 VA examination, shortly after service, indicated that the veteran had normal right ear hearing for VA service connection purposes. However, the veteran had just undergone a series of internal and external reconstructive ear surgeries (and had at least one right ear infection), and this audiometric testing showed marginally high thresholds at the low, moderate and extremely high frequency levels. The three subsequent VA audiometric examinations of record, conducted many years later, now reflect bilateral high frequency sensorineural hearing loss. While the results of these later tests are consistent, they are not collectively consistent with the results of the May 1947 audiogram. However, we are unable to disassociate the present findings of right ear sensorineural hearing loss from the veteran's multiple ear surgeries and other experiences incident to service and from the findings of the May 1947 audiogram. Based upon the veteran's reopened claim, we find there to be an approximate balance of positive and negative evidence regarding the issue of whether right ear defective hearing is of service origin. 38 U.S.C.A. §§ 1110, 5107(b). The veteran was initially service-connected for tinea pedis with onychomycosis by a May 1991 rating decision. His service medical records show that he was treated in June 1943 for trichophytosis of the feet. An April 1991 VA examination revealed a diffuse scaling erythema of both feet, and a thickening of the toenails bilaterally. The examiner stated that the most likely diagnosis was tinea pedis with onychomycosis. Color slides and pictures of the veteran's feet are of record. In March 1992, the veteran testified during a hearing that his treating dermatologist told him that his bilateral foot disorder was incurable. He indicated that he received medical treatment several times annually for exfoliation, flaking, chapping, cracking and constant burning and itching of the feet. He said that it was difficult for him to be on his feet for lengthy periods. Based upon this testimony and the evidence of record, the hearing officer, resolving all doubt in favor of the veteran, determined that he was entitled to a 10 percent evaluation. The 1945 Schedule for Rating Disabilities will be used for evaluating the degree of disabilities in claims for disability compensation. The provisions of the rating schedule represent the average impairment in earning capacity in civil occupations resulting from those disabilities, as far as practicably can be determined. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Dermatophytosis is evaluated as for eczema, under the provisions of 38 C.F.R. Part 4, Diagnostic Code 7806. As with eczema, the evaluation will depend upon the location and extent of the disease and the repugnant disfigurement or other disabling characteristics of the disease. Dermatophytosis with exfoliation, exudation or itching, if involving an exposed surface or extensive area, warrants a 10 percent evaluation. A 30 percent evaluation requires constant exudation or itching, and extensive lesions or marked disfigurement. 38 C.F.R. Part 4, Diagnostic Code 7813. Where there is a question as to which of two evaluations shall 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. 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. A review of the evidence indicates that a disability rating in excess of 10 percent for bilateral tinea pedis with onychomycosis is not warranted. The evidence shows that tinea pedis with onychomycosis results in scaling and erythema of the feet and thickening of the toenails. However, although already evaluated as 10 percent disabling, the veteran's foot disorder does not involve an exposed surface or an extensive area. Moreover, as required for a 30 percent evaluation, extensive lesions or marked disfigurement is not present. Although the veteran testified that he has constant burning and stinging of his feet, he only complained of burning and stinging at night during the 1991 VA examination. Other recent VA medical records do not show constant exudation or itching as required for a 30 percent rating. The preponderance of the evidence is against the claim for an increased rating and there is no reasonable doubt that the veteran's foot disorder is more than 10 percent disabling. 38 C.F.R. § 4.3. We have also considered whether the veteran's tinea pedis with onychomycosis warrants an extraschedular evaluation in accordance with the provisions of 38 C.F.R. § 3.321(b)(1). However, the evidence fails to document any marked interference with employment, frequent periods of hospitalization, or any other exceptional or unusual disability picture resulting from this service-connected disability which would render the application of the regular schedular standards impractical. Id. ORDER The rating decision of March 1970, which denied service connection for defective hearing, was clearly and unmistakably erroneous in denying service connection for left ear defective hearing but was not in error in denying service connection for right ear defective hearing. Pursuant to the veteran's reopened claim, service connection for right ear defective hearing is granted. Entitlement to an evaluation in excess of 10 percent for tinea pedis with onychomycosis is denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 * JANE E. SHARP PHILIP E. WRIGHT *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional Member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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 (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. DESIGNATION OF RECORD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), the Board has reviewed and considered all of the evidence and material of record in the veteran's claims folder. The Board has determined that only those items listed in the "Certified List" attached to this decision and incorporated by reference herein are relevant evidence in the consideration of the veteran's claim. 1. Enlisted record and report of separation (honorable discharge) 2. Jun 43-Dec 46 service medical records 3. May 47 VAX (ENT/audiogram) 4. Jun 48 VAX 5. Mar 70 rating decision 6. Mar 79 VAX (audiogram) 7. Dec 85 VAX (ENT) 8. Aug 87 veteran statement 9. .Dec 87 veteran statement 10. Oct 89 veteran's daughter statement 11. Nov 90 VAX (audiogram) 12. Apr 91 VAX (dermatology) 13. Nov 91 NOD 14. Nov 91 South Carolina DVA statement 15. Dec 91 SOC 16. Jan 92 VA Form 1-9 17. May 91-Mar 92 VAOPTR 18. Mar 92 hearing transcript 19. Apr 92 hearing officer's decision 20. May 92 SSOC 21. May 92 South Carolina DVA statement 22. May 92 VA Form 1-9 23. Jul 92 VAX (audiogram) 24. Jul 92 SSOC 25. Aug 92 NOD 26. Sep 92 SSOC 27. Sep 92 VA Form 1-9 28. Sep 92 VA Form 1-646 29. Nov 92 The American Legion statement