**UNITED STATES COURT OF VETERANS APPEALS**

No. 92-1268

[Albert L. Ardison, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Jesse Brown,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided April 4, 1994 )

*Robert F. Redmond, Jr.* was on the brief for appellant.

*Mary Lou Keener*, General Counsel, *Norman G. Cooper*, Assistant
General Counsel, *R. Randall Campbell*, Deputy Assistant General
Counsel, and *Susan A. Wuchinich* were on the pleadings for appellee.

Before NEBEKER, *Chief Judge*, and IVERS and STEINBERG, *Judges*.

IVERS, *Judge*: Albert L. Ardison appeals a June 24, 1992, decision of
the Board of Veterans\' Appeals (BVA or Board) which denied an increased
rating for service-connected tinea pedis (athlete\'s foot) (now rated
10% disabling). *Albert L. Ardison*, BVA 92-15455 (June 24, 1992). On
June 21, 1993, the Secretary filed a motion to vacate the BVA decision
and for summary remand. On July 19, 1993, appellant filed a reply in
opposition to the Secretary\'s motion. The Court has jurisdiction over
the case pursuant to 38 U.S.C. § 7252(a). Because of the issues
presented by this case, the Court holds that this case is not
appropriate for summary disposition. *See Frankel v. Derwinski*, 1
Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Court
vacates the June 1992 decision of the BVA and remands the case for
readjudication consistent with this opinion.

**I. Factual Background**

Appellant served on active duty in the United States Marine Corps from
August 18, 1951, to June 14, 1963. *See* R. at 46. A June 11, 1953,
service medical record noted that appellant had \"Mycotic or Atopia
dermititis \[sic\] bilateral both feet, incurred in USMC in 1952 and has
been persistent e\[v\]er since.\" R. at 29. This condition was also
noted on appellant\'s separation examination report. R. at 34-35. On
April 23, 1964, a VA regional office (RO) granted service connection for
tinea pedis, which it evaluated as 0% disabling. R. at 46-47.

In September 1973, appellant filed a claim for an increase in the rating
for tinea pedis. R. at 66. A March 15, 1974, VA clinical record assessed
the condition as mild. R. at 82. On May 28, 1974, the RO denied a
compensable evaluation for the condition. R. at 87. On June 25, 1974,
appellant filed a Notice of Disagreement (NOD) regarding the RO\'s
decision. R. at 88. In a September 4, 1974, letter, appellant\'s
treating physician, Dr. Edward L. Smith, wrote: \"After wearing his
shoes for an eight-hour day for three days, his feet show evidence of
active fungal lesions with purulent vesicles, at base of right great
toe.\" R. at 93. (A vesicle is a blister. [Webster\'s Medical Desk
Dictionary]{.smallcaps} 756 (1986).) A January 3, 1975, certificate from
Dr. Smith related intermittent flareups in appellant\'s condition. R. at
107. For instance, Dr. Smith noted that on December 18, 1973, appellant
had experienced a recurrence of the condition accompanied by macerated
skin and vesicles. *Ibid.* (\"Macerated\" refers to skin that has been
softened by having been steeped or soaked in fluid. [Stedman\'s Medical
Dictionary, Illustrated]{.smallcaps} 817 (23rd ed. 1976) \[hereinafter
\"[Stedman\'s]{.smallcaps}\"\].) On September 4, 1974, appellant
experienced another flareup; several days later, on September 24, 1974,
the vesicles had spread to the hands and possibly his lips. *Ibid.* By
September 31, 1974, the condition had improved. *Ibid.* Dr. Smith
diagnosed appellant with \"Mycotic infection both feet, hands, chronic
and acute \[with\] secondary bacterial infection.\" *Ibid.* On May 8,
1975, the RO continued its denial of an increased evaluation. R. at 114.
On October 3, 1975, the Board found that the tinea pedis was
\"manifested by recurring episodes of redness, blisters and maceration
of the feet which result in soreness and itching, and id reaction
involving the hands and lips\" and assigned a 10% rating for the
condition. R. at 137-38. (An \"id reaction\" is defined as \"a state of
sensitivity of the skin in which a part remote from the primary lesion
reacts . . . to substances of the pathogen, giving rise to a secondary
inflammatory lesion.\" [Stedman\'s]{.smallcaps} at 687-88.)

On October 1, 1980, appellant filed for an increased evaluation. R. at
140. A January 29, 1981, VA medical record stated that appellant had
\"scaling eruption both feet plantar surfaces; both great toes
moderately involved.\" R. at 152. On April 8, 1981, the RO denied
appellant\'s claim for an increased rating. R. at 155. The VA then
considered additional medical records. An August 28, 1981, VA progress
note also indicated that, upon examination, appellant presented \"a
resolving vesicular lesion . . . on \[the\] hands \[and\] feet.\" R. at
164. The note also provided a diagnosis of tinea pedis with id reaction
on the hands. *Ibid.* An October 2, 1981, VA progress note from a VA
dermatology clinic indicated that appellant\'s dermaphytosis of the feet
had \"improved considerably.\" R. at 163. On October 30, 1981, the RO
continued its denial of an increased rating. R. at 165. On September 30,
1983, the Board denied an increase in the rating for service-connected
tinea pedis, which remained rated as 10% disabling. R. at 180.

On January 3, 1990, appellant filed a claim for an increase on the
grounds that his condition had worsened. R. at 181. After reviewing
certain records obtained from the Loma Linda, California, VA Medical
Center (R. at 182-83), the RO denied the claim for an increase and sent
notification to appellant on April 5, 1990. R. at 184-85. Appellant
filed an NOD on April 30, 1990. R. at 186. Having reviewed the Statement
of the Case sent to him, appellant informed the RO that it had not
obtained the correct medical records from the VA Medical Center. R. at
192. On April 8, 1991, the Board remanded the claim for the RO to obtain
additional records of treatment and to schedule \"a special VA
dermatology examination in order to determine the extent of the
veteran\'s tinea pedis . . . .\" R. at 219. In September 1991, appellant
underwent a VA examination. R. at 241. On October 10, 1991, the RO
continued its denial of an increased rating. R. at 242. On June 24,
1992, the Board denied the claim for an increase in the
service-connected tinea pedis (rated 10% disabling). *Ardison*, BVA
92-15455, at 6.

**II. Analysis**

**A. *Duty to Assist***

Appellant\'s claim for an increase is a new claim, and we review the
Board\'s findings of fact regarding such a claim under a \"clearly
erroneous\" standard of review. 38 U.S.C. § 7261(a)(4); *Butts v.
Brown*, 5 Vet.App. 532, 535 (1993) (en banc); *Gilbert v. Derwinski*, 1
Vet.App. 49, 53 (1990).

In this case, however, an inadequate record frustrates judicial review.
The record is inadequate because the Board did not fulfill its duty to
assist appellant in the development of his claim. Once a claimant has
submitted \"evidence sufficient to justify a belief by a fair and
impartial individual that the claim is well grounded,\" the Board has a
duty to assist him in developing the facts pertinent to his claim. 38
U.S.C. § 5107(a); *see* 38 C.F.R. § 3.103(a) (1993); *Waddell v. Brown*,
5 Vet.App. 454, 456 (1993); *Murphy v. Derwinski*, 1 Vet.App. 78, 81
(1990). In *Green v. Derwinski*, 1 Vet.App. 121, 124 (1991), the Court
stated: \"\[F\]ulfillment of the statutory duty to assist here includes
the conduct of a thorough and contemporaneous medical examination, one
which takes into account the records of the prior medical treatment, so
that the evaluation of the claimed disability will be a fully informed
one.\"

Appellant\'s tinea pedis is rated by analogy to the diagnostic code (DC)
for eczema. *See* 38 C.F.R. § 4.118, DC 7806 (1993); *see also* 38
C.F.R. §§ 4.20 (analogous ratings for unlisted conditions), 4.27 (DCs
for unlisted conditions) (1993); *Butts*, 5 Vet.App. at 537; *Lendenmann
v. Principi*, 3 Vet.App. 345, 349-51 (1992); *Pernorio v. Derwinski*, 2
Vet.App. 625, 629 (1992). The condition is currently rated 10%
disabling. The pertinent code provides that a 10% rating is warranted
\"\[w\]ith exfoliation, exudation or itching, if involving an exposed
surface or extensive area.\" 38 C.F.R. § 4.118, DC 7806. The code
further provides that a 30% rating is warranted \"\[w\]ith exudation or
itching constant, extensive lesions, or marked disfigurement.\" *Ibid.*
Under the code, a 50% rating is warranted \"\[w\]ith ulceration or
extensive exfoliation or crusting, and systemic or nervous
manifestations, or exceptionally repugnant.\" *Ibid.*

Here, the September 1991 VA examination was not adequate, given
appellant\'s prior history of remission and recurrence of tinea pedis.
*See also* 38 C.F.R. § 4.2 (1993) (rating specialist must interpret
examination reports in light of whole record, \"reconciling the various
reports into a consistent picture so that the current rating may
accurately reflect the elements of disability present\"; if diagnosis is
not supported by findings on examination report or if report does not
contain sufficient detail, \"it is incumbent upon the rating board to
return the report as inadequate for evaluation purposes.\"); *Abernathy
v. Principi*, 3 Vet.App. 461, 464 (1992) (BVA decision was erroneous
where, inter alia, it relied on incomplete examination). In *Bowers v.
Derwinski*, 2 Vet.App. 675, 676 (1992), the Court examined, inter alia,
the above DC and concluded: \"As we read the regulations, 38 C.F.R. §
4.1 (1991), and the diagnostic codes, cited above, it is the frequency
and duration of the outbreaks and the appearance and virulence of them
*during the outbreaks* that must be addressed . . . .\" (Emphasis
added.) In this case, there is evidence that appellant\'s tinea pedis
consists of active and inactive stages during which the condition
improves. *See, e.g.,* R. at 208-10. For instance, at a December 18,
1974, personal hearing, appellant testified:

> . . . I was informed by my representative . . . that to go before the
> Board, I should have evidence or so to speak, actually my condition
> occurred when I get in my shoes three or four days at a time, any
> eight hour period during the days, three or four days period then I
> break out, it\'s when this condition gets worse. So he told me I
> should do this before I go before the Board and he was going to
> transfer my records up here and that I would be called in. He said
> before you go there you should let the condition worsen, get worse by
> wearing your shoes. Which I did, but I\'m talking back in August now
> here I am and it\'s December, so since this time my face has broken
> out, my lip which you can still see was broken out, my hands and
> everything else which I\'d been to my doctor and also went . . .
> \[ellipsis in original\] with the condition at that time and I have
> witnesses through there because they made notations of this. The
> condition was in my face and they said get out of those shoes, he says
> and don\'t suffer yourself anymore, because I was broken out all over
> \[and\] my lips had split open.

R. at 101-02. Recognizing the fluctuating nature of appellant\'s
condition, the hearing officer stated:

> Mr. Ardison, you have mentioned the fact that your feet will erupt
> from time to time with an acute exacerbation of the condition. I\'d
> suggest that when this occurs you immediately go to the \[\] VA
> Outpatient Clinic at the nearest VA facility and have them examine
> your feet and send us a description of their findings and in that way
> you\'re sure that regardless of where the symptoms appear, whether
> it\'s the face, the hands, the buttocks or the feet, we\'ll be aware
> of it and the Board can review their findings at that time.

R. at 102-03. Nevertheless, despite the fluctuating nature of
appellant\'s tinea pedis, the VA examination was not performed during
the active stage of the condition. The September 1991 VA examination was
performed during an inactive stage. In the resulting examination report,
a VA examiner wrote: \"Several residual vesicles are seen on feet. There
is some interdigital maceration. No active vesiculation or bullae
formation is present.\" R. at 241. (A \"bulla\" is a blister.
[Stedman\'s]{.smallcaps} at 202.) The examiner diagnosed appellant as
having bilateral tinea pedis which was severe only by history. *Ibid.*
Moreover, although an \"id reaction\" affecting the hands and lips has
been found in the past, the September 1991 VA examination did not
mention any such manifestations, and it is not clear whether the VA
examiner evaluated appellant for such a reaction. On remand, the Board
must provide for the conduct of an adequate examination during the
active stage of appellant\'s tinea pedis, and must, on the basis of that
examination and all evidence of record, ascertain the existence, extent,
and significance under the rating schedule of any \"id reaction\" due to
tinea pedis.

**B. *Extraschedular Consideration***

Appellant has also stated that the condition affects his employability.
In a December 1991 letter attached to a VA Form 1-9 (Appeal to BVA),
appellant wrote:

> . . . I have to be out of my shoes 50-60% of the time, to keep this
> condition under control. I have stated before, my left eye and my
> right foot and leg are half numb. I cannot stay in my shoes for more
> than 2 weeks at a time, then my feet break out, and I have to go
> through the healing process again, which takes 3-4 weeks out of my
> shoes for it to heal, using the medication I have 3 times a day. After
> 35 years I have learned to live with this condition, but cannot be
> gainfully employed and take 3 and 4 weeks off at a time. Therefore,
> this is the reason I am asking for an increase in my compensation. I
> gave up my career, and the Marine Corp\[s\], because of this
> condition.

R. at 248-49. Under 38 C.F.R. § 3.321(b)(1) (1993), the VA\'s Chief
Benefits Director or the Director of the Compensation and Pension
Service is authorized to approve

> an extra-schedular evaluation commensurate with the average earning
> capacity impairment due exclusively to the service-connected
> disability or disabilities. The governing norm in these exceptional
> cases is: A finding that the case presents such an exceptional or
> unusual disability picture with such related factors as marked
> interference with employment or frequent periods of hospitalization as
> to render impractical the application of the regular schedular
> standards.

In its June 1992 decision, the Board simply stated: \"An extraschedular
evaluation is not appropriate as the veteran\'s tinea pedis disability
is not so unusual and exceptional as to render impractical the
application of the regular rating standards, pursuant to the provisions
of 38 C.F.R. § 3.321(b)(1).\" *Ardison*, BVA 92‑15455, at 6. This
statement by the Board does not make the requisite findings of fact or
give reasons or bases for its decision that referral to the appropriate
VA officials under 38 C.F.R. § 3.321(b)(1) was not warranted. *See
Kellar v. Brown*, \_\_ Vet.App. \_\_, \_\_, No. 92-1223, slip op. at 5‑6
(U.S. Vet. App. Jan. 24, 1994); *Moyer v. Derwinski*, 2 Vet.App. 289,
293-94 (1992) (Court remanded for BVA to give reasons or bases regarding
potential applicability of 38 C.F.R. § 3.321(b)(1)). Therefore, on
remand, the Board must make the requisite findings of fact and provide
sufficient reasons or bases on the issue of whether referral of the
extraschedular consideration issue is indicated.

**C. *Remedy***

In his brief, appellant argues that reversal is the appropriate remedy.
Reversal is the appropriate remedy when \"\[t\]here is absolutely no
plausible basis\" for the BVA\'s decision and where that decision \"is
clearly erroneous in light of the *uncontroverted* evidence in
appellant\'s favor.\" *Hersey v. Derwinski*, 2 Vet.App. 91, 95 (1992)
(emphasis added). This situation is unlike the factual situation
presented in *Karnas v. Derwinski*, 1 Vet.App. 308, 311 (1991), where
the Court reversed a BVA decision reducing a veteran\'s disability
rating. In reversing the BVA decision, the Court stated in *Karnas*:
\"Because there is *no* evidence to support the BVA determination, it is
obvious that a mistake has been committed, the finding is not plausible,
there can be only one permissible view of the evidence, and, thus, the
finding is clearly erroneous.\" *Karnas*, 1 Vet.App. at 311 (emphasis
added); *cf. Harder v. Brown*, 5 Vet.App. 183, 189 (1993) (sum of all
the evidence \"dictated\" grant of service connection); *Barnhill v.
Brown*, 5 Vet.App. 75, 77 (1993) (Court assigned 70% rating for
post-traumatic stress disorder where there was \"no plausible basis\"
for BVA\'s denial of increased evaluation and where \"record
compellingly\" established entitlement to increased evaluation);
*Schafrath v. Derwinski*, 1 Vet.App. 589, 596 (1991) (because case
involved a rating reduction, not a rating increase, appropriate remedy
was reversal of BVA decision and reinstatement of prior rating). Here,
appellant cites to numerous medical records, including several from
1989, for the proposition that the record supports either a 30% or a 50%
rating. However, the record also includes medical statements that
appellant\'s tinea pedis was \"under good control\" (R. at 209) or
presented only \"mild scaling\" (R. at 223, 226). *See also* R. at 199,
202, 205. In addition, albeit inadequate because, as discussed above, it
was conducted during an inactive stage of the condition, the September
1991 VA examination found residual vesicles on the feet with some
maceration between the toes, but \"\[n\]o active vesiculation or bullae
formation.\" R. at 241. The Board\'s failure in the duty to assist
frustrates effective judicial review, but it does not dictate
entitlement to an increased evaluation. *See Gilbert*, 1 Vet.App. at 57
(lack of adequate reasons or bases in the BVA\'s decision frustrates
effective judicial review) (quoting *Camp v. Pitts*, 411 U.S. 138,
142-43 (1973)). As the Supreme Court of the United States has stated:

> If the record before the agency does not support the agency action, if
> the agency has not considered all relevant factors, or if the
> reviewing court simply cannot evaluate the challenged action on the
> basis of the record before it, the proper course, except in rare
> circumstances, is to remand to the agency for additional investigation
> or explanation.

*Florida Power & Light Co. v. Lorion*, 470 U.S. 729, 744 (1985); *see
also Occidental Petroleum Corp. v. SEC*, 873 F.2d 325, 347 (D.C. Cir.
1989) (\"The proper course in a case with an inadequate record is to
vacate the agency\'s decision and to remand the matter to the agency for
further proceedings.\"). Therefore, the appropriate remedy is a remand.

**III. Conclusion**

Accordingly, upon consideration of the record and the pleadings of both
parties, we VACATE the June 1992 decision of the BVA and REMAND the case
for readjudication consistent with this opinion.