Citation Nr: 0000481 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 92-11 318 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC THE ISSUES 1. Entitlement to service connection for residuals of a head injury, including post-traumatic headaches. 2. Entitlement to service connection for an acquired psychiatric disorder. 3. Entitlement to service connection for dental trauma. 4. Entitlement to an increased rating for of the right great toe, currently evaluated as 10 percent disabling. 5. Entitlement to a higher rating for postoperative residuals of a bunion of the left great toe, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sabrina M. Tilley, Counsel INTRODUCTION The veteran served on active duty from June 1977 to June 1980 and from September 1980 to July 1981. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 1989 rating decision. The Board notes that the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims, hereinafter the Court), in Fenderson v. West, 12 Vet. App. 119 (1999) held, in part, that the RO never issued a statement of the case concerning an appeal from the initial assignment of a disability evaluation, as the RO had characterized the issue in the statement of the case as one of entitlement to an increased evaluation. Fenderson involved a situation in which the Board had concluded that the appeal as to that issue was not properly before it, on the basis that a substantive appeal had not been filed. This case differs from Fenderson in that the appellant did file a timely substantive appeal concerning the initial rating to be assigned for the left great toe disability. The Board observes that the Court, in Fenderson, did not specify a formulation of the issue that would be satisfactory, but only distinguished the situation of filing a notice of disagreement following the grant of service connection and the initial assignment of a disability evaluation from that of filing a notice of disagreement from the denial of a claim for increase. Moreover, the appellant in this case has clearly indicated that what he seeks is the assignment of a higher disability evaluation. Consequently, the Board sees no prejudice to the veteran in either the RO's characterization of the issue or in the Board's characterization of the issue as one of entitlement to the assignment of a higher disability evaluation. See Bernard v. Brown, 4 Vet. App. 384 (1883). Therefore, the Board will not remand this matter solely for a re-characterization of the issue in a new statement of the case. FINDINGS OF FACT 1. The record does not contain competent evidence of a nexus between a current disability, including headache, and head injury or disease during the veteran's active service. 2. The record does not contain competent evidence that the veteran had an acquired psychiatric disorder during his military service. 3. The record does not contain competent evidence of a nexus between any current psychiatric disability and injury or disease during the veteran's active service. 4. The record does not contain competent evidence of a nexus between a current dental disability and dental trauma during the veteran's active service. 5. The veteran has postoperative residuals of a bunion of the right great toe with complaints of pain and numbness. 6. The veteran currently has postoperative residuals of a bunion of the left great toe with some complaints of pain and numbness. 7. Prior to the August 14, 1990, the veteran had moderate bunion of the left great toe with pain and tenderness to palpation over the metatarsal joint, not equivalent to amputation of the great toe. CONCLUSIONS OF LAW 1. The veteran has not presented a well-grounded claim with respect to service connection for residuals of a head injury to include post-traumatic headaches. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). 2. The veteran has not presented a well-grounded claim with respect to service connection for an acquired psychiatric disorder. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). 3. The veteran has not presented a well-grounded claim with respect to service connection for dental trauma. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). 4. The criteria for an evaluation in excess of 10 percent for a bunion deformity of the right great toe have not been satified. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Codes 5279, 5280 (1999). 5. The criteria for an evaluation in excess of 10 percent for a bunion deformity of the left great toe have not been satisfied. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Codes 5280 (1999). 6. The criteria for a compensable evaluation for a bunion deformity of the left great toe prior to August 14, 1990 have not been satisfied. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Codes 5280 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection The law requires that a claimant shall have the burden of submitting a claim that is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The VA benefits system requires more than just an allegation of entitlement. A claimant must submit supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Although the claim need not be conclusive, the statute requires the claim to be accompanied by some evidence. Id. The three elements of a "well grounded" claim for service connection are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996); see also Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). Without evidence showing that a disease or disability is present, no plausible claim for service connection can be presented, and the claim is not well grounded. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The veteran contends that he has residuals of a head injury including post-traumatic headaches, as well as an acquired psychiatric disability and dental trauma related to his active service. He has provided testimony consistent with these contentions. However, the veteran is advised that where the determinative issues involve questions of medical causation or medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Laypersons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Consequently, lay assertions of medical causation or medical diagnosis cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359, 365 (1995); Grottveit v. Brown, 5 Vet. App. 91, 95 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Hence, I find that the veteran's unsubstantiated allegations alone are an insufficient basis on which to establish a well-grounded claim for service connection. As discussed below, the Board concludes that the veteran has not presented plausible or well-grounded claims with respect to service connection for residuals of head trauma, to include post-traumatic headaches, for an acquired psychiatric disorder, and for dental trauma. Consequently, no duty to assist the veteran is required under the provisions of 38 U.S.C.A. § 5107. Nonetheless, under 38 U.S.C.A. § 5103(a), VA has the duty to inform the claimant of the evidence necessary to complete his application. See Robinette v. Brown, 8 Vet. App. 69 (1995). This obligation was successfully completed by the RO in its statement of the case. Likewise, the Board's discussion below informs the veteran of the requirements for the completion of his application for these claims for service connection. Residuals of a Head Injury, Including Post-traumatic Headaches. The veteran satisfied the initial criteria for establishing a well grounded claim, as there is evidence of current disability. The report of the initial VA examination conducted in August 1989 contains a diagnosis of post- traumatic headaches. There are also reports of private treatment that show the veteran was treated in 1996 for head trauma sustained in June 1996. With respect to the second criteria, there is no reference to a head injury in the veteran's service medical records. However, the veteran has reported that he received a head injury when he was assaulted by several men while stationed in Germany. This evidence is competent only to the extent that the veteran has articulated information concerning what he experienced, but not with respect to matters involving a determination of medical causation or diagnosis. See Falzone v. Brown, 8 Vet. App. 398 (1995). In addition, the report of the August 1989 VA examination show that the veteran was noted to have post-traumatic headaches, based on the veteran's history of the inservice assault. However, the veteran is advised that evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence" satisfying the Grottveit requirement for a well grounded claim. Such evidence cannot enjoy the presumption of truthfulness as to determination of well groundedness because a medical professional is not competent to opine as to matters outside the scope of his or her expertise, and a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Thus competent evidence of a nexus has not been submitted. A veteran may also establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b) (1999), that is applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumptive period, and that the same condition currently exists. Such evidence must be medical unless the condition at issue is a type that under case law, lay observation is considered competent to demonstrate its existence. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same regulation if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 495-98 (1997). However, in this case, lay evidence of continuity of symptoms is not sufficient, but a medical nexus is needed. See Savage v. Gober, 10 Vet. App. 488; Falzone v. Brown, 8 Vet. App. 398 (1995). In this case, competent medical evidence is needed to show that the current clinical findings are related to the veteran's inservice complaints. Acquired Psychiatric Disability. Reports of private evaluation and treatment from June 1990 show that the veteran underwent psychiatric evaluation that revealed symptoms consistent with an adjustment disorder with mixed emotional features. The veteran's claim must fail, as there is no reference to any psychiatric disability during the veteran's active service. Moreover, the veteran has not submitted competent medical evidence to show that he currently has a psychiatric disorder that may be associated with injury or disease noted during active service. Dental Trauma As to dental conditions, service connection will be granted for disease or injury of individual teeth and the investing tissues, shown by the evidence to have been incurred in or aggravated by service. 38 C.F.R. § 3.381(a) (1999). As to each noncompensable service-connected dental condition, a determination will be made as to whether it is due to a combat wound or other service trauma. 38 C.F.R. § 3.381(e) (1999). The significance of finding a dental condition is due to service trauma is that a veteran will be eligible for VA dental treatment for the condition, without the usual restrictions of timely application and one-time treatment. 38 C.F.R. § 17.161(c) (1999). The veteran satisfies the initial criteria of presenting a well grounded claim inasmuch as there is evidence of current disability. Private dental records show that the veteran has various dental conditions. The report of a September 1993 questionnaire reflects that the veteran reported that he had dental extractions while serving in Germany in 1978. However, service medical records from the first period of active service do not contain dental records. Likewise, there is no documentation - in service medical records or otherwise -- of the assault to which the veteran has made reference. The report of the dental examination conducted at the time of the veteran's entrance into active service shows that the veteran did not have any documented problem with his teeth. Likewise, the report of the medical examination for release from active service failed to show the presence of any dental condition. Service medical records from the veteran's second period of active service show that he was treated in November and December 1980 for tooth #9, which is consistent with the veteran's allegation that he sustained injury to one of his front teeth. A December 1980 entry with X-ray films confirms that the veteran had undergone endodontics and was being fitted for a crown. However, there is no evidence to indicated that the dental condition resulting in this treatment was due to dental trauma. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, periodontal disease (pyorrhea), and Vincent's stomatitis are not disabling conditions, and may be considered service- connected solely for the purpose of determining entitlement to dental examinations or outpatient dental treatment under the provisions of 38 C.F.R. §§ 17.120 or 17.123 (1999). Moreover, the veteran has not submitted any competent evidence that would establish a nexus between the current complaints and dental trauma during his active service. II. Increased Rating Initially, I note that the veteran has presented well- grounded claims with respect to increased ratings for the service-connected bunion deformities. The veteran has presented a well grounded claim for increased disability evaluation for his service-connected disabilities within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet.App. 218, 224 (1995). Where veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well grounded claim for an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). I am also satisfied that all appropriate development has been accomplished and that VA has no further duty to assist the veteran. All relevant facts have been properly developed. The recent examinations provide sufficient information to rate the disabilities in accordance with the applicable rating code. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Service-connected disabilities are rated in accordance with a schedule of ratings which are based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Evaluations are based upon a lack of usefulness in self-support. 38 C.F.R. § 4.10. 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 for the higher rating. 38 C.F.R. § 4.7. In considering the severity of a disability it is essential to trace the medical history of the disability. 38 C.F.R. §§ 4.1, 4.2. In this case, service connection was established for postoperative residuals of a bunion of the right great toe in a October 1989 rating decision. A 10 percent rating was assigned. This is the veteran's current rating. Service connection was also established for a bunion deformity of the left great toe in the October 1989 rating decision. The veteran was then assigned a noncompensable rating. By an October 1991 rating, the veteran's disability rating was increased from noncompensable to 10 percent from August 14, 1990, due to private medical evidence showing that the veteran underwent a bunionectomy on the left side on that date. This is the veteran's current rating. Current Ratings A 10 percent rating for a unilateral hallux valgus is warranted where operated with resection of the metatarsal head or where the deformity is so severe as to be equivalent to an amputation. 38 C.F.R. § 4.71a, Code 5280. This is the highest schedular evaluation for a bunion. The veteran is advised that there is no basis for a higher schedular evaluation. The veteran has provided testimony to the effect that his feet become completely numb and that the only true remedy for his condition is amputation. He also testified that he is currently taking pain medication for his bilateral foot problem. However, the clinical record does not demonstrated the functional loss due to pain that would be equivalent to an evaluation in excess of the current schedular 10 percent rating. 38 C.F.R. §§ 4.40, 4.45, 4.59; De Luca v. Brown, 8 Vet. App. 202 (1995). Factors listed in 38 C.F.R. § 4.45 include less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); excess fatigability; incoordination; impaired ability to execute skilled movements smoothly; and pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight- bearing are related considerations. Neither the medical records and reports nor the veteran's statements show the presence of such factors as weakened or abnormal movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, or interference with sitting, standing, or weight-bearing to a degree that would warrant the assignment of a higher rating. The preponderance of the evidence is against evaluations in excess of 10 percent for postoperative residuals of the bunions of the left and right great toes. In Floyd v. Brown, 9 Vet. App. 88 (1996), the Court held that the Board does not have jurisdiction to assign an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999) in the first instance. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the laws and regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1) or from reaching such a conclusion on its own. Moreover, the Court did not find the Board's denial of an extraschedular rating in the first instance prejudicial to the veteran, as the question of an extraschedular rating is a component of the appellant's claim and the appellant had full opportunity to present the increased-rating claim before the RO. Bagwell v. Brown, 9 Vet. App. 337 (1996). Consequently, the Board will consider whether this case warrants the assignment of an extraschedular rating. In exceptional cases where schedular evaluations are found to be inadequate, consideration of "an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities" is made. 38 C.F.R. § 3.321(b)(1). 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. Id. The Board finds that the schedular evaluations in this case are not inadequate, and there is no evidence of an exceptional disability picture in this case. The veteran has not required frequent hospitalization and has not demonstrated marked interference with his employment. Accordingly, there is no basis for consideration of an extraschedular rating. Entitlement to a compensable rating for a bunion on the left great toe prior to August 14, 1990. Prior to August 14, 1990, the veteran had a hallux valgus deformity on the left great toe. No surgery had been performed on this defect. Consequently, to prevail in his claim for a higher evaluation, the veteran would have had to demonstrate disability so severe as to be equivalent to amputation. A June 1990 note shows that the veteran had had a symptomatic deformity on the left foot for 10 years. The recorded impression was that the veteran had a bunion deformity on the left that was moderate in degree. At no time prior to the August 1990 surgery did the veteran demonstrate severe disability necessary for a compensable schedular rating. The principle feature of the veteran's disability picture was pain. The private treatment reports show that the veteran reported having pain and that he was treated with pain medication. Likewise, there is some suggestion of pain on palpation of the metatarsal head in the report of the August 1989 VA examination. Nonetheless, the veteran has not demonstrated the functional loss due to pain that would be equivalent to an evaluation 10 percent. 38 C.F.R. §§ 4.40, 4.45, 4.59; De Luca v. Brown, 8 Vet. App. 202 (1995). Neither the medical records and reports nor the veteran's statements show the presence of such factors as weakened or abnormal movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, disturbance of locomotion, or interference with sitting, standing, or weight-bearing to a degree that would warrant the assignment of a compensable rating. Thus, the preponderance of the evidence is against an evaluation in excess of 10 percent for a bunion on the left great toe prior to August 14, 1990. The Board finds that the schedular evaluations in this case are not inadequate, and there is no evidence of an exceptional disability picture in this case. The veteran has not required frequent hospitalization and has not demonstrated marked interference with his employment. Accordingly, there is no basis for consideration of an extraschedular rating under the provisions of 38 C.F.R. § 3.321. ORDER The veteran's claim for service connection for residuals of a head injury, including post-traumatic headaches is not well grounded. The appeal is denied. The veteran's claim for service connection for an acquired psychiatric disorder is not well grounded. The appeal is denied. The veteran's claim for service connection for dental trauma is not well grounded. The appeal is denied. An increased rating for postoperative residuals of a bunion on the right great toe is denied. A higher rating for postoperative residuals of a bunion on the left great toe is denied. MARY GALLAGHER Member, Board of Veterans' Appeals