BVA9504526 DOCKET NO. 93-09 912 ) DATE ) ) On appeal from the decision of the Regional Office in Nashville, Tennessee Department of Veterans Affairs THE ISSUES 1. Entitlement to service connection for an eye disorder manifested by visual impairment. 2. Entitlement to service connection for jungle rot of the feet, tinea pedis, corns, calluses, and plantar warts. 3. Entitlement to a disability evaluation in excess of 10 percent for meningitis with headaches. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher B. Moran, Counsel INTRODUCTION The veteran served on active duty from August 1967 to August 1970. A review of the file reveals that, in addition to the issues stated on the title page, the veteran was given a statement of the case with regard to the issue of entitlement to service connection for post-traumatic stress disorder. By rating action of December 1991, service connection for this disability was granted. Accordingly, the only issues remaining for appellate consideration are those stated on the title page. It appears from a statement submitted by the veteran in January 1990 and testimony given before a hearing officer at the Department of Veterans Affairs (VA) Regional Office (RO) in June 1992 that the veteran may be raising the issue of entitlement to a total disability evaluation on the basis of individual unemployability due to service-connected disorders. Accordingly, such matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL It is contended by the veteran, in essence, that he developed an eye disorder with visual impairment, as well as jungle rot of the feet with corns and calluses and plantar warts, as a result of combat duty in Vietnam. Additionally, he maintains that his service-connected meningitis with headaches is primarily manifested by increasing episodes of migraine-type attacks averaging approximately 2 to 3 days per week with varying degrees of intensity and duration. He points out that sometimes he experiences vomiting and nausea but no associated visual symptoms. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claims for service connection for jungle rot of the feet with tinea pedis, corns, calluses and plantar warts and for an increased evaluation for meningitis with headaches; it is further the decision of the Board that the veteran's claim of service connection for an eye disorder with visual impairment is not well grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Aside from any refractive error, bilaterally, no eye disorder was noted during service or demonstrated by objective examination thereafter. 3. Jungle rot of the feet, tinea pedis, corns, calluses, and plantar warts were first demonstrated many years after service and have not been shown to be related to his military service. 4. The veteran's residuals of meningitis are principally manifested by headaches without objectively demonstrated characteristic prostrating attacks occurring on an average once a month over the last several months. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim for service connection for an eye disorder with visual impairment. 38 U.S.C.A. § 5107(a) (West 1991). 2. Jungle rot of the feet, tinea pedis, corns, calluses and plantar warts of both feet were not incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110, 1154(b), 5107 (West 1991); 38 C.F.R. § 3.303(d)(1994). 3. The criteria for the assignment of a disability evaluation greater than 10 percent for meningitis with headaches have not been satisfied. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.20 and Part 4, Diagnostic Codes 8019, 8100 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection For Eye Disorder With Visual Impairment The threshold question that must be resolved with regard to each claim is whether the veteran has presented evidence that the claim is well grounded, that is, that the claim is plausible. If he has not, his appeal fails as to that claim, and we are under no duty to assist him in any further development of that claim. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). In the case before us, we find that the evidence does not demonstrate the presence of an eye disability other than refractive error. We note that at recent hearings at the RO the veteran did not indicate that he had ever been informed medically that any visual impairment was due to any other cause other than refractive error. We note that in accordance with the provisions of 38 C.F.R. § 3.303(c) that refractive error is not a disease or injury within the meaning of applicable legislation. We accordingly find that the veteran's claim for service connection for an eye disorder with visual impairment is not well grounded, and therefore, fails. Specifically, the Board notes that a variety of medical records have been associated with the veteran's claims folder. These records include service medical records, post service private and VA clinical data and examination reports and transcripts from hearings before a hearing officer at the RO in October 1991 and June 1992. This evidence at no time demonstrates the presence of an eye disability other than decreased vision due to refractive error. This finding was first noted at induction and confirmed on a recent VA eye examination in May 1990, at which time he had uncorrected vision of 20/30, bilaterally. Otherwise, the eye examination was normal. Subsequent VA outpatient treatment records refer to occasional complaints of blurry vision but no etiology other than refractive error is demonstrated. A statement dated in August 1991 from William B. Findley, M.D. includes visual acuity findings consistent with established refractive error and without mention of any eye disorder. It is recognized that the veteran essentially alleges that he incurred an eye disorder with visual impairment during his military service. However, in the absence of any medical evidence whatsoever of objectively demonstrated eye disorder aside from refractive error, we are of the opinion that the veteran's claim with respect to an eye disorder is not well grounded. The United States Court of Veterans Appeals (hereinafter the Court) has held that a well-grounded claim requires the submission of evidence. Although the claim need not be conclusive, 38 U.S.C.A. § 5107(a) (West 1991) provides that it must be accompanied by "evidence," Tirpak v. Derwinski, 2 Vet.App., 609 (1992), at 611. (Emphasis in original). In this decision the Court explained that the VA "benefits system requires more than just an allegation, a claimant must submit supporting evidence. " Id at 611. (See also Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992), in which a veteran sought service connection for hypertension and where the Court found that, "because of the absence of any evidence of current hypertension...appellant's claim is not plausible and therefore not well grounded.") The evidence does not demonstrate the presence of an eye disorder, aside from refractive error, currently. Since the veteran has not submitted evidence sufficient to justify a belief by a fair and impartial person that the claim for service connection for an eye disorder with visual impairment is plausible, as is required under the provisions of 38 U.S.C.A. § 5107(a) (West 1991), his claim for service connection for such is not well grounded and must be dismissed. 38 U.S.C.A. § 5107(a) (West 1991); Boeck v. Brown, 6 Vet.App. 14, 17 (1993). II. Service Connection For Jungle Rot of the Feet With Tinea Pedis, Corns, Calluses, and Plantar Warts With regard to the veteran's claim for service connection for jungle rot of the feet, tinea pedis, corns, calluses, and plantar warts, we find that the claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. He has not asserted that any records of probative value that may be obtained and which are not already associated with his claims folder are available. We accordingly find that all relevant facts have been properly developed, and that the duty to assist him, mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. It is contended by the veteran, in essence, that he developed jungle rot of the feet, tinea pedis, corns, calluses and plantar warts while serving on active duty in Vietnam. Service connection may be established for disability resulting from personal injury suffered or a disease contracted in line of duty, or for aggravation of preexisting injuries suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 1991). Regulations also provide that, with a showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnoses including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not shown to be chronic or where a diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Also, service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In accordance with 38 U.S.C.A. § 1154(b) (West 1991) and 38 C.F.R. § 3.304(d) (1994), in the case of any veteran who engaged in any combat with the enemy in active service within military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of such service connection of any disease or injury alleged to have been incurred in or aggravated by 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 service incurrence or aggravation in such service and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The Board points out that, when all the evidence is assembled, the VA is responsible for determining whether the evidence supports a claim or is in relative equipoise with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). In this case, the pertinent evidence of record includes a report of a preinduction examination dated in November 1963 which was entirely silent for any pertinent pathology. No pertinent complaint was noted on a report of medical history. On a subsequent medical examination for induction purposes, dated in July 1967, no pertinent pathology was noted on objective examination. Clinical evaluation of the feet was normal. However, the veteran reported having had problems with calluses on both feet. The remaining service medical records are entirely silent for any complaint of jungle rot of the feet, tinea pedis, corns, calluses, or plantar warts. The post service private medical records include records of A. C. Patterson, M.D., Paul Gentry, M.D., and Tanner Medical Center. These records are silent for any pertinent complaint or finding regarding jungle rot of the feet, tinea pedis, corns, calluses, and plantar warts. On VA general medical and dermatology evaluations in May 1990, the veteran reported a history of jungle rot on his feet which he stated that he had while in Vietnam and on and off ever since. It was worse in the warm summer months. He noticed that if he stood around for 4 or 5 hours he had to get off of his feet because of marked pain. He stated that he could walk about a mile before his feet tired. He had had no surgery on his feet although sometimes he personally scraped off some of the calluses. He noted that the dermatitis of his feet was not getting any better and that he used various types of creams but the condition stayed about the same. No history of ulcers on his feet was noted. Medications consisted of foot spray. He complained of daily pain because of the calluses, corns and jungle rot. Following objective examination, the diagnoses were tinea pedis, bilateral, calluses of feet, and plantar warts on plantar surface of each foot. Subsequently dated VA and Private medical records reflect continued treatment for foot symptoms. In October 1991 and June 1992, the veteran attended a personal hearing before a hearing officer at the RO. Copies of the hearing transcripts are on file. The veteran testified that he was treated for fungal infections of the feet during service. He further testified that he continued to have problems after service which he treated with over-the-counter medications. He stated that he had not been treated for his feet prior to treatment by the VA. The Board finds that the evidence shows that the claimed jungle rot of the feet along with tinea pedis, corns, calluses and plantar warts were not noted during service or until approximately 20 years following separation from active duty. There has been no showing of an etiologic link relating his complaints to service, especially in view of a lack of any pertinent pathology noted on earlier private treatment records. The evidence does not provide a basis for associating the claimed jungle rot of the feet, tinea pedis, corns, calluses and plantar warts of the feet were incurred in or aggravated by active service. The veteran's self-reported history and arguments raised on appeal comprise the only association between his current tinea pedis, corns, calluses, and plantar warts of both feet claimed also as jungle rot with service. However, his arguments are substantially outweighed by the lack of supporting clinical data in service and the post service clinical records until approximately 1990, many years following separation. The veteran is not shown to be competent to make such a diagnosis or finding as to medical causation. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Therefore, the preponderance of the evidence is negative and does not support a claim of service connection for jungle rot of the feet, tinea pedis, corns, calluses and plantar warts of both feet. III. Increased Rating for Residuals of Spinal Meningitis with Headaches Disability ratings are based as far as practicable on the average impairment of the earning capacity resulting from disability. 38 U.S.C.A. § 1155 (West 1991). The average impairment as set forth in the VA's Schedule for Rating Disabilities, as in 38 C.F.R. Part 4, includes diagnostic codes which represent particular disabilities. Generally, the degrees of disabilities specified are considered adequate to compensate for considerable loss of work and time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (1993). When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnoses or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1993). Meningitis is assigned a 100 percent evaluation as an active disease process. Thereafter, it is rated on the residuals, with a minimum 10 percent evaluation. 38 C.F.R. § 8019 (1994) The veteran's only residual disability is headaches. A 10 percent evaluation for headaches requires characteristic prostrating attacks averaging one in two months over the last several months. A 30 percent evaluation is warranted with characteristic prostrating attacks occurring on an average once a month over the last several months. 38 C.F.R. Part 4, Code 8100 (1994). The veteran primarily maintains that his spinal meningitis is manifested by headaches that are consistent with migraine-type attacks. He argues that they have increased over the last years with varying degrees of intensity duration and are occasionally accompanied by vomiting and nausea. A review of the record shows that on a report of on an earlier preinduction examination dated in November 1963 the veteran complained of frequent or severe headaches; objective examination was silent for any pertinent pathology. On a subsequent report of induction examination dated in July 1967, prior to entrance onto active duty, the veteran denied having any frequent or severe headaches. An objective examination was negative for any pertinent pathology. The veteran's available service medical records reflect treatment for meningococcal meningitis, which resolved completely in service except for complaints of headaches. On a private hospital report from Tanner Medical Center dated in October 1989, the veteran reported a history of treatment for spinal meningitis with subsequent headaches and dizziness. A hospital admission physical examination was negative for any pertinent pathology. The pertinent diagnosis was hypertension and headaches, by history. Private medical records from Paul Gentry M.D., dating between August 1989 and March 1990 are negative for any pertinent findings aside from a few complaints of lightheadedness and denial of dizziness. Clinical Records of treatment from A. C. Patterson, M.D., Psychiatrists, reflecting treatment between late November 1989 and late March 1990, are negative for any pertinent pathology including complaints of headaches. On the VA examination in May 1990, there were no objectively demonstrated residuals of meningitis or complaints of headaches. All pertinent evaluations examination were normal. By rating determination in February 1991, the RO granted service connection for residuals of meningitis with headaches evaluated at 10 percent in accordance with 38 C.F.R. Part 4, Diagnostic Code 8019. This rating was assigned on the basis that the service medical records revealed treatment for spinal meningitis on active duty. The evidence does not show that there were residuals of spinal meningitis when the veteran was discharged from active duty. There were no residuals of spinal meningitis noted on the VA examination in May 1990 nor on examinations received from the veteran's private doctor and hospital. Since the veteran was not noted as having any problems with meningitis except for headaches, he was provided a minimum 10 percent evaluation under 38 C.F.R. Part 4, Diagnostic Code 8019. VA outpatient clinical records referring to treatment in June 1991 are silent for any objective complaints or findings of meningitis or headaches. A private report of medical examination dated in August 1991 from William B. Findley, M.D., is similarly sound for any complaints or findings of meningitis with headaches. In October 1991, the veteran attended a personal hearing before a hearing officer at the RO. He noted that he normally had headaches from anywhere from about 2 to 4 days a week which lasted from six hours to all eight hours at a time. He relieved his headaches by medication given to him by the VA. He noted that he received treatment at the VA Clinic in Chattanooga for headaches. He noted that they occurred occasionally when he became depressed. VA outpatient clinic records from Chattanooga indicated that they only had records of treatment from July 19, 1991, to July 22, 1991, with no pertinent findings or complaints of headaches noted on the enclosed medical report. A VA neurology evaluation in December 1991 indicated that the veteran complained of occasional severe headaches since meningitis in 1976 getting more frequent. His headaches occurred between 1 to 4 or 5 times per week in the frontal area. No ocular or nausea/vomiting symptoms were associated with the headaches. His headaches were relieved by medication and by lying down. Neurologic examination was normal. Impression was status post meningitis and common migraine. In October 1991 and June 1992 the veteran attended a personal hearings before a hearing officer at the RO. He noted that his headaches involved the front of his forehead and lasted at times between a day and four days in one week. He noted that the doctors related his headaches to spinal meningitis present in service. He noted that he took over-the-counter drugs like "Goody's" to treat his headaches. At one point, he had prescription drugs given to him through the VA. The drug worked fairly well but he did not use it anymore. On an average, he noted that he had 8 or 10 headaches per month. He noted that his headaches were not associated with any visual symptoms. He also stated that he was treated by a Dr. Gentry for headaches, as well as other things. The evidence received for the veteran's current claim including reports of VA examinations and outpatient clinical records, as well as private treatment records are silent for any objectively demonstrated residuals of meningitis aside from complaints of headaches that are treated by over-the-counter prescription and consistent with a minimum 10 percent evaluation under Diagnostic Code 8019. Moreover, the record lacks any supporting evidence of headaches that are consistent with more than 10 percent under an alternative Diagnostic Code 8100 for migraine headaches productive of more than characteristic prostrating attacks averaging 1 in 2 months over the last several months and without evidence of characteristic prostrating attacks occurring on an average once a month over the last several months. This is further illustrated by the lack of any regular ongoing treatment either through the VA or private sources over the years. Overall, the evidence does not show other than clinically asymptomatic meningitis other than complaints of headaches meeting the minimum 10 percent evaluation under Diagnostic Code 8019. Accordingly, the assignment of an increased evaluation greater than 10 percent for residuals of meningitis with headaches is not for application. V. Other Considerations Other consideration has been given to the potential application of various provisions of 38 C.F.R. Parts 3 and 4, with regard to the veteran's claim for increased evaluation for residuals of meningitis with headaches. We find that the service-connected disorder at issue does not meet or more nearly approximate the criteria for the next higher evaluation under the above-noted respective code provisions. 38 C.F.R. § 4.7 (1994). We also note that the evidence discussed herein does not show that the veteran has service-connected disability which presents such an unusual or exceptional disability picture as to render impractical the application of regular schedular standards. In particular, the service-connected disorder does not present such an exceptional or unusual disability picture with respect to related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Therefore, the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1994) is not warranted. ORDER The veteran's claim of entitlement to service connection for an eye disorder with visual impairment is not well grounded. The appeal is dismissed. Service connection for jungle rot of the feet, tinea pedis, corns, calluses, and plantar warts is denied. An increased evaluation for meningitis with headaches is denied. V. L. JORDAN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (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), 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.