Citation NR: 9631961 Decision Date: 11/08/96 Archive Date: 11/22/96 DOCKET NO. 94-37 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a skin disorder of the scalp. 2. Entitlement to an increased rating for neurodermatitis of the groin, scrotum, perineum and anal areas, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The veteran served on active duty from December 1985 to November 1991. This matter is before the Board of Veterans Appeals (Board) from a February 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office in Reno, Nevada. The hearing officer granted service connection for neurodermatitis. The RO implemented that decision and assigned a noncompensable evaluation. The RO also denied the veteran's claim for service connection for a skin disorder of the scalp. In August 1995, the hearing officer assigned a 10 percent rating for the veteran's service-connected skin condition, effective November 17, 1991. This determination was implemented by the RO in a rating decision in August 1995. In April 1995, the veteran raised a claim of entitlement to service connection for a dental disability. Since this matter is not developed or certified for appeal, it is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection should be established for folliculitis of the scalp. He argues that severe dandruff originated in service and has worsened since separation. He testified he initially sought treatment at the VA for this condition after his separation from service. He notes that he was told that he had dandruff and chronic folliculitis. He states that his symptoms began as bumpy areas on his scalp. He argues that this chronic skin condition of his scalp either began during active service or is secondary to his service-connected neurodermatitis. The veteran also argues that a higher rating is warranted for neurodermatitis of the groin, scrotum, perineum and anal areas. He claims he has constant, severe itching and burning and that medication does not eliminate his symptoms. He argues that his skin disorder covers the entire groin area, including the penis, testes and rectal area. He argues this condition interferes with sleep if he does not take medication to relieve the itching. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), the Board has reviewed the evidence and material of record in the veteran's claims files. 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 veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim of entitlement to service connection for a skin disability of the scalp is well grounded. It is also the decision of the Board that a preponderance of the evidence is against the claim for an increased rating for neurodermatitis of the groin, scrotum, perineum and anal areas. FINDINGS OF FACT 1. There is no medical diagnosis of a skin disease of the scalp during active service and the veteran has not presented competent medical evidence relating chronic folliculitis, seborrheic dermatitis, or any other chronic skin disorder of the scalp to active service or secondary to the veteran's neurodermatitis of the groin, scrotum, perineum and anal areas. 2. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 3. The service-connected skin condition is not manifested by constant itching, exudation, extensive lesions and it does not involve an exposed or extensive area, and is not productive of marked disfigurement. CONCLUSIONS OF LAW 1. The claim for service connection for a chronic skin disease of the scalp is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The criteria for a rating in excess of 10 percent for neurodermatitis of the groin, scrotum, perineum and anal areas is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7806 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for a Skin Disability of the Scalp Background The service medical records contain no evidence of a skin condition of the scalp. There is no medical diagnosis of folliculitis or dandruff or seborrheic dermatitis during active service. These records show treatment for pseudofolliculitis barbae and candidal balanitis. A July 1991 report of medical examination, approximately four months prior to separation from service, the head and scalp were normal. The veteran testified that he first experienced symptoms of dandruff in 1989, and symptoms related to folliculitis of the scalp in September 1992. Transcript, p. 2 (June 1995). During VA examination in August 1992, the veteran complained of itching penis. There were no complaints or medical diagnosis a skin condition of the scalp. Examination of the penis showed no skin irritation or other evidence of an active infection. The veteran stated the skin condition was quiescent and he used Lotrimin cream when active symptoms are present. During VA outpatient treatment in November 1992, the veteran complained of an itching and peeling sensation on his scalp for approximately four weeks. He stated that he had excessive dandruff. He related that he had been using some new hair grease and a new shampoo for his hair, and that he noticed the rash on his scalp. The examiner stated the “[o]bjective findings reveal no current dermatitis of the scalp.” The diagnosis was a history of scalp dermatitis, excess dandruff, and the examiner recommended Selsun shampoo for future use. The following month the veteran complained that the shampoo resolved the dandruff problem but made his hair very dry. Examination showed no dandruff and the veteran's scalp was dry. The assessment was dandruff and dry scalp. A January 1994 private medical record states the veteran has chronic folliculitis of the scalp. The veteran was afforded a VA examination of the skin in June 1994. The veteran complaints included dandruff and an itchy scalp. Examination showed a dry, scaly scalp rash with flakes. The diagnoses were seborrheic dermatitis and folliculitis of the scalp. Private medical records in September 1994 show the veteran had a scalp rash consistent with folliculitis. The examiner explained to the veteran about his condition and instructed him to clip his hair rather than shave his hair. The examiner also noted an eruption that appeared consistent with intertrigo or eczema, for which topical ointment was prescribed. VA outpatient records dated the same day show the veteran had skin lesions on the top of his head. The assessment was neurodermatitis. Analysis For service connection to be granted, it is required that the evidence establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1995). There are some disabilities where service connection may be presumed if the disorder is manifested to a degree of 10 percent within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1995). When a disability is not initially manifested during service or within an applicable presumptive period, "direct" service connection may nevertheless be established by evidence demonstrating the disability was in fact incurred or aggravated during the veteran's service. See 38 U.S.C.A. § 1113(b) (West 1991); 38 C.F.R. § 3.303(d) (1994); Cosman v. Principi, 3 Vet.App. 503 (1992); Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992); Douglas v. Derwinski, 2 Vet.App. 103, 108-09 (1992). Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The United States Court of Veterans Appeals (Court) has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107(a)]." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The Court has also held that although a claim need not be conclusive, the statute provides that it must be accompanied by evidence that justifies a "belief by a fair and impartial individual" that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 610 (1992). The Court has held that "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is 'plausible' or 'possible' is required." Grottveit v. Brown, 5 Vet.App. 91, 93 (1993) (citing Murphy, at 81); Brammer v. Brown, 3 Vet.App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 143-44 (1992). Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a) (West 1991); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. See Grottveit, 5 Vet.App. at 93 (Court held that lay assertions of medical causation cannot constitute evidence to render a claim well grounded); see also Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992) (Court held that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration). In Caluza v. Brown, 7 Vet.App. 498, 506 (1995) the Court reaffirmed these holdings, stating in order for a claim to be well grounded there must be competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the inservice injury or disease and the current disability (medical evidence). The threshold question in this case is whether the appellant has presented evidence of a well-grounded claim. If the appellant has not submitted evidence of a well-grounded claim, there is no duty to assist him in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The service medical records contain no evidence of a skin disorder of the scalp. There is no medical diagnosis of folliculitis, seborrheic dermatitis, or any other chronic skin disorder of the scalp during active service. A July 1991 report of medical examination, approximately four months prior to separation from service, the head and scalp were normal. The veteran testified that he first experienced symptoms of dandruff in 1989, and symptoms related to folliculitis of the scalp in September 1992. Tr., p. 2. The fact that the veteran observed dandruff as early as 1989 does not establish a medical diagnosis of a skin disorder of the scalp during active service. In fact, the veteran testified he did not receive treatment for any symptoms during active service. Tr., pp. 2, 3-4. The initial post-service medical evidence of showing treatment for skin problems of the scalp is a November 1992 VA outpatient record. At that time, the veteran related his symptoms of itching and a peeling sensation on his scalp as having begun only four weeks prior to treatment. The examiner stated the “[o]bjective findings reveal no current dermatitis of the scalp.” The diagnosis was a history of scalp dermatitis, excess dandruff, and the examiner recommended Selsun shampoo for future use. The remaining medical records show continued VA and private medical treatment for scalp symptoms. The medical diagnoses include chronic folliculitis of the scalp, seborrheic dermatitis, a scalp rash consistent with folliculitis, an eruption that appeared consistent with intertrigo or eczema and skin lesions on the top of his head assessed as neurodermatitis. While the medical evidence shows current diagnoses of skin diseases of the scalp, these post-service medical records contain no medical opinions relating any of these diagnoses to active service. These medical records also do not contain medical opinions relating any scalp disease secondary to the veteran’s service-connected neurodermatitis of the groin, scrotum, perineum and anal areas, or pseudofolliculitis barbae. In this case, the only evidence in support of the veteran's assertion that the skin disability of his scalp is related to service consists solely of his statements and his testimony. While the veteran is competent to relate the conditions observed during service such as dandruff, he is not competent to render a medical opinion that the dandruff was a manifestation of a chronic skin disease of the scalp that was present during service. The veteran is also not competent to relate any of the post-service diagnoses to active service or secondary to his service-connected disabilities. Grottveit, 5 Vet.App. at 93; Espiritu v. Derwinski, 2 Vet.App. at 494. The determinative issues in this case are whether any of the skin diseases of the scalp first shown post-service initially began during service or are otherwise related to service or a service-connected disability. Since this involves evidence of medical causation or a medical diagnosis, competent medical evidence is required. The competent medical evidence of record establishes that the veteran's scalp disease initially began after separation from active service. No physician or other health care provider has suggested that the skin disease of the veteran's scalp had its onset in service or that it is related to his service-connected disabilities. The representative argues the claim is well grounded because the hearing officer cited to a medical text which defines neurodermatitis and lists classic locations which include the occipital area of the scalp. A copy of that text, The Manual of Skin Diseases, Gordon Sauer (3rd ed. 1973) is not in the claims folder. This medical statement relayed as it is through a lay person constitutes hearsay evidence that is simply too attenuated and inherently unreliable to constitute medical evidence to well ground this claim. Robinette v. Brown, 8 Vet.App. 69, 77 (1995). In addition, the hearing officer cited to that text for a definition of the term “neurodermatitis” in connection with the service connection claim for neurodermatitis of the groin, scrotum, perineum and anal areas. The definition alone does not establish that this veteran had a medical diagnosis of neurodermatitis during service or provides a medical opinion that the current skin disease of the scalp is secondary to the service-connected neurodermatitis of the groin, scrotum, perineum and anal areas, or is otherwise related to service. For these reasons, the Board finds there is no medical diagnosis of a skin disease of the scalp during active service and the veteran has not presented competent medical evidence relating chronic folliculitis, seborrheic dermatitis, or any other chronic skin disorder of the scalp to active service or secondary to the veteran's neurodermatitis of the groin, scrotum, perineum and anal areas. Consequently, the Board concludes that the claim for service connection for a chronic skin disease of the scalp is not well grounded. 38 U.S.C.A. § 5107 (West 1991). When the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the veteran has been given adequate notice to respond and, if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). The Board concludes, however, that a claim which is not well grounded is inherently implausible, and any error by the RO in the adjudication of the claim could not be prejudicial. Thus, if he is able to submit a well-grounded claim in the future, he will not be faced with the higher hurdle of providing new and material evidence to reopen his claim after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991); McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). Although when a claim is not well grounded, the VA does not have a statutory duty to assist a claimant in developing facts pertinent to his claim, the VA may be obligated to advise a claimant of the evidence needed to complete the application. This obligation depends upon the particular facts of the case and the extent to which the VA has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet.App. 69, 77 (1995). Here, the Board is providing the veteran with notice of the evidentiary insufficiency of his claim, and what evidence would be necessary to make the claim well grounded. II. Increased Rating Background The service medical records disclose that the veteran was treated in September 1991 for a pruritic plaque on his penis. The assessment was candidal balanitis. He was seen the next month for resolving candidiasis. During VA examination in August 1992, the veteran complained of itching penis. An examination of the penis revealed no skin irritation was apparent. The veteran related that his condition was quiescent at the time of the examination. He stated that he used a cream when it was active. The diagnosis was recurrent balanitis. VA and private outpatient treatment records show that the veteran was treated for groin infections. On VA examination in August 1993, the veteran reported a history of itching in the inguinal region and in the intergluteal cleft. An examination revealed no vesicles, scaling infiltration or evidence of excoriation. A culture to determine if any fungus remained was negative. The diagnosis was pruritus of undetermined etiology. Based on this evidence, a hearing officer granted service connection for neurodermatitis. This determination was effectuated by the RO in a rating decision in February 1994. A noncompensable evaluation was assigned for neurodermatitis of the groin area, pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7813 of the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4. The veteran was afforded a VA examination in June 1994. He complained of itching of his groin, scrotum, perineum and anus. On rectal examination, there was a scaly rash around the anal opening to the perineum, scrotum and groin. The pertinent diagnosis was dermatophytosis of the groin, scrotum, perineum and anal skin. On VA skin examination in June 1994, there was a dry scaly rash of the groin, scrotum, perineum and surrounding the anal skin. The veteran stated that it was extremely pruritic at times and never went away. He added that he always had some rash, despite the use of multiple medications. It was reported that the veteran had insomnia when the itching was severe. The diagnosis was dermatophytosis of the groin, scrotum, perineum and anal skin. VA and private clinical records from 1993 to 1995 reflect that the veteran was treated for skin problems of his groin, scrotal and anal areas. Based on the medical evidence and the veteran's testimony at the personal hearing, the hearing officer assigned a 10 percent rating for neurodermatitis of the groin. In August 1995, the RO assigned a 10 percent rating for neurodermatitis of the groin, scrotum, perineum and anal areas under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7806. The veteran was again afforded a VA skin examination in October 1995. The veteran stated that he had treated the groin rash with various ointments and creams and Benadryl, but only the Benadryl was effective in relieving the itching. He described severe pruritus which occurred all year. An examination showed that there were areas of dermatitis, dry scaly skin of the scrotum, groin, anal perineal areas. The diagnosis was neurodermatitis of the groin, scrotum, perineum and anal skin. Analysis 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; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). The requirements set forth in the regulations for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single, incomplete or inaccurate report, and to enable the VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet.App. at 593-94. 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, 4.41 (1995), the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). The Schedule for Rating Disabilities provides a 30 percent rating for eczema with exudation or constant itching, extensive lesions, or marked disfigurement. A 10 percent evaluation is assigned where there is exfoliation, exudation or itching involving an exposed surface or extensive area. 38 C.F.R. § 4.118, Diagnostic Code 7806. The veteran also argues that a higher rating is warranted for his service-connected skin disease because he has constant, severe itching and burning and that medication does not eliminate his symptoms. Tr., p. 4. He testified that his skin disorder covers the entire groin area, including the penis, testes and rectal area, but it does not spread to the lower extremities except for the thigh or groin area. Tr., p. 4. He also testified that this condition interferes with sleep if he does not take medication to relieve the itching. Tr., pp. 8-9. The medical evidence clearly demonstrates that the veteran's rash of the groin, scrotum, perineum and anal areas involves a nonexposed surface and requires regular use of medication to control itching. Although the veteran argues that his skin disease causes severe and constant itching and burning, his statements regarding the severity and persistence of his symptoms are not consistent with statements made to his treating physicians and those contained in the medical examiners’ findings. For example, during the October 1995 VA examination, the veteran acknowledged that Benadryl was effective in relieving the itching. During examination in February 1993, the veteran stated to the examiner that when he uses the medication the rash is completely under control but comes back after he stops using the medication. Examination of the penile crural area at that time revealed no acute, present dermatitis and it was under complete control with medication. In May 1993, the veteran stated to the VA examiner that his infection had been successfully treated in the past with medication. The examiner described the infection as white flakes affecting only the groin, testes and penis without evidence of erythema. In August 1993, examination by his private physician showed no evidence of vesicles, scaling, infiltration or excoriation. An August 1993 summary from his treating physician states there is no reason why the veteran cannot continue using lotion, cream, or gel for relief of the itching. In addition, the veteran testified that the itching is not constant and that it is controlled with medication. Tr., p. 5. The medical findings also demonstrate that the skin disease does not result in extensive lesions or marked disfigurement. During VA examination in August 1994, the examiner noted that physical examination showed only minimal skin changes without intertrigo, vesiculation, lichenification or exudation. The veteran testified that his symptoms did not include fluid from the affected areas. Tr., p. 9. The examiner also noted that the dermatitis was in the rectal area only. As late as June 1995, the assessment was a chronic skin problem with itching that is relieved somewhat with medication. The Board also notes that despite the veteran’s argument that his symptoms include severe burning all the time, this is not mentioned in many of the VA and private records in which the veteran was being treated for active symptoms. Finally, the veteran testified that despite the necessity to stop periodically to scratch himself, this condition does not interfere with his duties as a letter carrier or result in lost time from work. Tr., p. 5. For all the above reasons, the Board finds that the veteran’s service-connected skin disease is not manifested by constant itching, exudation, or extensive lesions, and it does not involve an exposed or extensive area, and is not productive of marked disfigurement. The Board also finds the evidence is not evenly balanced and concludes that the criteria for a rating in excess of 10 percent for neurodermatitis of the groin, scrotum, perineum and anal areas is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code 7806. ORDER Service connection for a skin disease of the scalp is denied. An increased rating for neurodermatitis of the groin, scrotum, perineum and anal areas is denied. R. E. COPPOLA Acting 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. - 2 -