Citation Nr: 0000365 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-00 084 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES 1. Entitlement to service connection for the residuals of pneumonia. 2. Entitlement to service connection for a disorder causing right abdominal pain. 3. Entitlement to service connection for bronchitis. 4. Entitlement to service connection for bleeding scars. 5. Entitlement to an increased (compensable) rating for a scar on the right forearm. 6. Entitlement to an increased (compensable) rating for a scar on the left ankle. 7. Entitlement to an increased rating for bronchial asthma, currently evaluated as 10 percent disabling. 8. Entitlement to an increased rating for atopic dermatitis with tinea pedis, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD J. Horrigan, Counsel INTRODUCTION The veteran had active service from September 1993 to December 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1996 rating decision by the RO which denied service connection for residuals of pneumonia, right abdominal pain, bronchitis, and bleeding scars. The RO granted service connection for atopic dermatitis with tinea pedis, evaluated as 10 percent disabling; bronchial asthma, evaluated as 10 percent disabling; a scar on the right forearm, evaluated as noncompensable; and a scar on the left ankle, evaluated as noncompensable. In his substantive appeal (VA Form 9) dated in November 1998, the veteran indicated that he wished to appear at an RO hearing before a member of the Board. The requested hearing was scheduled at the RO for September 15, 1999. The veteran failed to appear for this hearing. The case is before the Board for appellate consideration at this time. For reasons made evident below, the issues of entitlement to an increased rating for bronchial asthma and an increased rating for atopic dermatitis with tinea pedis will be discussed in the remand portion of this decision. FINDINGS OF FACT 1. The veteran's claim for service connection for the residuals of pneumonia is not plausible. 2. The veteran's claim for service connection for a disorder causing right abdominal pain is not plausible. 3. The veteran's claim for service connection for bronchitis is not plausible. 4. The veteran's claim for service connection for bleeding scars is not plausible. 5. The veteran's scar on the right forearm is well healed, non tender, and causes no functional impairment. 6. The veteran's scar on the left ankle is well healed, non tender, and causes no functional impairment CONCLUSIONS OF LAW 1. The veteran has not submitted a well grounded claim for service connection for residuals of pneumonia. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999) 2. The veteran has not submitted a well grounded claim for service connection for a disorder causing right abdominal pain. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999) 3. The veteran has not submitted a well grounded claim for service connection for bronchitis. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999) 4. The veteran has not submitted a well grounded claim for service connection for bleeding scars. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1999) 5. The criteria for a compensable evaluation for a right forearm scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.31, 4.118, Diagnostic Codes 7803, 7804, 7805 (1999) 6. The criteria for a compensable evaluation for a left ankle scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 4.31, 4.118, Diagnostic Codes 7803, 7804, 7805 (1999) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Basis On the veteran's May 1993 examination prior to service enlistment, evaluation of the veteran's chest revealed slight pectus excavatum with no pathology seen. The veteran's skin was evaluated as normal as was his abdomen and viscera. In the physician's summary, it was noted hat the veteran had been hospitalized for bronchitis at the age of 18. Review of the service medical records reveals that the veteran was seen in February 1994 with a one-month history of progressive shortness of breath and dyspnea after exercise. Evaluation of the chest revealed no labored breathing and no use of the accessory muscles. No abnormal breath sounds were heard and there were no signs of consolidation and fremitus. Pulmonary function tests revealed no evidence of restrictive or obstructive flow patterns. The lung volumes showed enlarged residual volume but were otherwise normal. The assessment was bronchitis. In April 1994 the veteran was seen with complaints which included a productive cough with greenish phlegm and mild nasal congestion. The assessments included early upper respiratory infection. In late August 1994 the veteran was seen with complaints of lower right quadrant pain which occurred every couple of months. On evaluation, the stomach was tender to palpation on the right side. There was no history of trauma and no ecchymosis or edema was noted. The assessment was right lower quadrant pain of unknown etiology, probable constipation. When seen three days later in August 1994, the assessment was right lower quadrant discomfort probably secondary to muscle strain after lifting heavy boxes. It was said that there was no evidence of herniation present. When seen later in August 1994 the veteran said that the pain was better but still present. The veteran said that there was a constant aching all over the abdomen but a stabbing pain developed when the right lower quadrant was pushed. After evaluation the assessment was right lower quadrant pain of unknown etiology, but possibly a small indirect inguinal hernia. The examination was said to be relatively normal. After a surgical consultation in mid September 1994 the assessment was right lower quadrant pain on palpation without hernia noted bilaterally. When seen in late September 1994 the veteran said that the pain had greatly decreased. The assessment was abdominal pain of muscular etiology. In November 1994 the veteran was seen with complaints of cold symptoms of one-month duration. He reported coughing up green phlegm and he had breathing difficulties after walking a short distance. Evaluation of the lungs revealed wheezing throughout the right lung fields. An X-ray showed a right middle lobe infiltrate. The assessment was right middle lobe pneumonia. The veteran was provided antibiotics and excused from physical training for 10 days. The veteran was again seen in late May 1995 with complaints of wheezing and dyspnea while running several miles. Evaluation revealed diffuse expiratory wheezes without rales. The assessment was restrictive airways disease, probably exercised induced. In July 1995 the veteran was seen with complaints of being unable to do physical training secondary to wheezing and dyspnea. The provisional diagnosis was restrictive airway disease. On evaluation scattered wheezes were reported on forced expiration. The assessment was mild asthma. The service medical records contain no findings of bleeding scars. In August 1995 the veteran underwent a medical board examination. The final diagnosis was asthma. The veteran was discharged from the service due to this disability. During a May 1996 VA examination the veteran gave a history of right lower quadrant abdominal pain, radiating into the groin, after lifting a 200-pound object in the military. Examination of the abdomen revealed no abnormality. No tenderness was noted and there was no sign of an inguinal hernia in either groin. It was concluded that there was a history of muscle strain involving the abdominal wall of the right lower quadrant with no residuals and no hernia. Evaluation of the veteran's right forearm revealed a scar on the ulnar aspect which was about an inch long and 1/4 th of an inch wide. It was described as asymptomatic and there was no local tenderness. Evaluation of the left ankle revealed an asymptomatic anterior scar toward the lateral portion which measured 1 inch in overall length and 1/4 th of an inch in width. This scar was also not tender and did not cause restriction of ankle function. On VA general medical examination in June 1996, the veteran gave a history of wheezing during physical training while in the military. He also had episodes during hot and humid weather in California. One episode of pneumonia during service was reported. He had had no bronchospasms, wheezing, or chronic coughing since his discharge from the service. He also gave a history of pain in the right lower quadrant of the abdomen during service but had not had any such symptoms since his discharge from service. The veteran's chest was normal to percussion on evaluation. There were no rales, wheezes or rhonchi detected. No wheezes were reported on forced expiration. Evaluation of the abdomen revealed it to be soft with no tenderness, guarding, or rebound tenderness. The impressions included history of obstructive airways disease in the military precipitated by physical training and humidity in California, asymptomatic for the previous 6 months; and right lower quadrant pain, resolved, probably muscular in nature. Private clinical records reflect treatment in December 1996 with complaints of a cough productive of green sputum. It was said that the veteran was around sick people at work. Evaluation of the lungs revealed adventitious high-pitched sounds in the right middle lobe. The assessment was bronchitis. On VA respiratory examination in August 1997 the veteran stated that he had exercised induced asthma. This would develop during physical training, usually after running half a mile. At the present time he would get short of breath if he hurried quickly or after about 200 yards of running. He had not been treated for bronchospasms over the previous year. Evaluation revealed that the chest was clear to percussion and auscultation. Pulmonary function studies revealed possible early obstructive pulmonary impairment with a reduced FEF 25-75 and normal FVC and FEV1 that may be reversible. FVC was 5.27, FEV1 was 4.05, and FEF was 25-75 3.58. The impression was exercised induced bronchospasms with mild debility. VA clinical records reveal that the veteran was seen in December 1997 with ongoing dermatitis. The veteran said that he had had the rash since summer and that the rash would crack and bleed. It was noted that there was an area on the left palm that was nearly healed. It was also noted that the veteran had had no recent wheezing or bronchospasms. A history of exercised induced asthma was noted. When seen in late May 1998, it was noted that the veteran denied any problem with asthma if he runs less than 3 miles. Evaluation revealed his chest to be clear and his respiration was easy. II. Service Connection for Residuals of Pneumonia, a Disorder Causing Right Abdominal Pain, Bronchitis, and Bleeding Scars Service connection may be granted for disability due to disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1999) The threshold question in regard to the veteran's claims for service connection for residuals of pneumonia, a disorder causing right abdominal pain, bronchitis, and bleeding scars is whether the veteran has met his burden of submitting evidence of well-grounded (i.e. plausible) claims. If not, the claims must fail and there is no duty to assist the veteran in their development. 38 U.S.C.A.§ 5107(a)(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). The Board finds that the veteran has not submitted well-grounded claims for service connection for these disabilities. The United States Court of Appeals for Veterans Claims (Court) has held that a veteran must submit evidence, not just allegations, in order for a claim to be considered well grounded. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). When, as in this case, the issue involves a question of medical diagnosis or causation, medical evidence is required to make the claim well grounded. Grottveit v. Brown, 5 Vet. App. 91 (1993). Lay statements by the veteran regarding questions of medical diagnosis and causation are not sufficient to establish a well-grounded claim, as he is not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In addition, the evidence must demonstrate that the veteran currently has a disability. Brammer v. Derwinski, 3 Vet. App. 223(1992). In summation, according to a decision of the Court, a well- grounded claim for primary service connection requires competent medical evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury during service (lay or medical evidence) and a nexus between the inservice injury or disease and the current disability. (medical evidence), Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Review of the record fails to reveal that the veteran currently has any respiratory disability that is a residual of the single episode of pneumonia noted during service. While the veteran does receive occasional current treatment for respiratory symptomatology, this has been attributed to bronchial asthma, for which service connection is already in effect. Since that is the case, the first and third elements of a well grounded claim for service connection, as determined by the Court in Caluza, have not been met in regard to the veteran's claim for service connection for the residuals of pneumonia. Accordingly the veteran's claim for service connection for this disability is not well grounded and must be denied. The veteran's service medical records show treatment for pain in the right abdominal area during service which was ultimately assessed as muscular in origin. However, the post service clinical records do not document the current existence of any disorder causing right abdominal pain. Since that is the case, the requirements for a well grounded claim of service connection have not been met in regards to the veteran's claim for service connection for a disorder causing right abdominal pain. See Caluza, supra and Brammer, supra. Accordingly, this claim must also be denied as not well grounded. The veteran's service medical records show that the veteran was treated for respiratory complaints on one occasion during service which were assessed as bronchitis. Post service records also document treatment for bronchitis on one occasion in December 1996, about one year after discharge from service. The record contains no competent medical evidence relating this episode to the veteran's respiratory symptoms during service. Moreover, no respiratory symptomatology attributable to bronchitis was reported on a subsequent VA examination in August 1997 and no findings of bronchitis were noted on subsequent VA outpatient treatment in December 1997 and May 1998. Since there is no competent clinical evidence that shows the current existence of chronic bronchitis, the requirements of a well grounded claim for service connection for bronchitis have also not been met. See Caluza, supra and Brammer, supra. Accordingly, service connection for bronchitis must also be denied. A review of the service medical records and the post service clinical records reveals no medical evidence that the veteran has ever had any bleeding scars. In December 1997, the veteran was noted to complain that his dermatitis would cause cracking and bleeding on the skin of his hands and fingers. However, service connection is already established for this skin disability, diagnosed as atopic dermatitis. The service connected skin disorder also includes tinea pedis. Since there is otherwise no evidence of the existence of any bleeding scars, either during service or subsequent to service discharge, the veteran's claim for service connection for bleeding scars also fails to meet the requirements for a well grounded claim under the Court's holdings in Caluza and Brammer. Accordingly the veteran's claim for service connection for bleeding scars is also not well grounded and must be denied. III Increased Ratings for a Right Forearm Scar and a Left Ankle Scar Initially, the Board notes that it finds the veteran's claims for increased (compensable) ratings for a right forearm scar and a left ankle scar to be "well grounded" within the meaning of 38 U.S.C.A. § 5107(a), in that these claims are plausible. The Board also finds that the VA has fulfilled its duty to assist the veteran as required by 38 U.S.C.A. § 5107(a) and no further development by the RO of these claims is necessary. Disability evaluations are determined by the application of a rating schedule 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 veteran scars on the right forearm and left ankle are evaluated under the provisions of 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, and 7805. Under the criteria of Diagnostic Codes 7803 and 7804, a 10 percent evaluation is assigned for scars which are superficial, poorly nourished, repeatedly ulcerated, or tender and painful on objective examination. Diagnostic Code 7805 provides that a rating for scars may also be assigned based on limitation of function of the affected part. Under the provisions of 38 C.F.R. § 4.31, where the minimum schedular rating requires residuals and the schedule does not provide for a noncompensable evaluation, a noncompensable evaluation will be assigned when the required residuals are not shown. On the veteran's May 1996 VA examination, neither the veteran's right forearm scar or his left ankle scar were noted to cause any functional impairment to the right forearm or left ankle. Therefore, the provisions of Diagnostic Code 7805 are not for application. Moreover, the evidence indicates that both the veteran's right forearm scar and his left ankle scar are well healed and are not painful or tender. The scars were not otherwise described as poorly nourished or ulcerated. Since that is the case, a compensable evaluation for the right forearm scar and a compensable evaluation for the left ankle scar are not warranted under Diagnostic Codes 7803 and 7804. Accordingly these scars remain noncompensable at present as provided by 38 C.F.R. § 4.31. ORDER Service connection for residuals of pneumonia is denied. Service connection for a disorder causing right abdominal pain is denied. Service connection for bronchitis is denied. Service connection for bleeding scars is denied. An increased (compensable) rating for a right forearm scar is denied. An increased (compensable) rating for a left ankle scar is denied REMAND The Board notes that the veteran's bronchial asthma is evaluated under the provisions of 38 C.F.R. § 4.97, Diagnostic Code 6602. The rating schedule for determining the disability evaluations for asthma were revised, effective October 7, 1996, subsequent to the veteran's filing his claim for an increased rating for this disability. The Court has held that, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial process has been concluded, the version most favorable to the veteran will apply. Karnas v Derwinski, 1 Vet. App. 308 (1991). This appeal arises from a rating decision of July 1996 that granted service connection and a 10 percent rating for bronchial asthma. That rating was, of course, based on the criteria of Diagnostic Code 6602 in effect prior to October 7, 1996. In August 1997, the veteran was afforded a VA respiratory examination. In a rating decision of June 1999 the RO confirmed and continued the 10 percent rating for the veteran's bronchial asthma under the criteria of Diagnostic Code 6602 that became effective on October 7, 1996. The criteria of Diagnostic Code 6602 which became effective on and subsequent to October 7, 1996, relies almost exclusively on pulmonary function tests. While pulmonary function studies were performed in connection with the August 1997 VA respiratory examination, the results of these studies described in the examination report are not sufficiently comprehensive and are not sufficiently explained for purposes of assigning a rating under the revised criteria of Diagnostic Code 6602. Therefore, a current VA respiratory examination, to include additional pulmonary function studies must be conducted prior to further appellate consideration of the issue of an increased rating for bronchial asthma. The Board notes that the veteran has been assigned a 10 percent rating for service connected atopic dermatitis with tinea pedis under the provisions of 38 C.F.R. § 4.118, Diagnostic Code 7806. The veteran last received a VA dermatology examination in July 1998. At that time, the findings included small fluid filled papules on the lateral aspect of the right middle finger between the first and second joint. The surrounding tissue was pink and some areas were crusted. Healed areas were noted on the palms of the hands and the insteps of both feet. The areas were discolored medium brown, and some skin exfoliation was noted. The veteran stated that at different times the dermatitis appeared all over his body. There was no other evidence of skin discoloration, exfoliation, ulceration, or crusting. The findings on this examination do not reveal extensive lesions or marked disfigurement, each of which is a basis for the assignment of a 30 percent rating for a skin disorder. However, the examiner failed to comment as to whether the service connected skin disorder produces constant exudation or itching, a separate basis for a 30 percent rating. Since that is the case, the Board believes that a further VA dermatological examination should be conducted prior to further appellate review. In view of the foregoing, this case is REMANDED to the RO for the following actions: 1. The RO should afford the veteran a VA respiratory examination to determine the current degree of severity of his bronchial asthma. All pertinent clinical findings should be reported in detail. The claims folder, including a copy of this remand, should be made available to the examiner for review prior to examining the veteran. The examiner should state that he has reviewed the claims folder in his examination report. All necessary special studies, to include pulmonary function testing, must be performed and all pertinent clinical findings and pulmonary test findings reported in detail. This means that the pulmonary function testing must be interpreted precisely in the terms called for under the current provisions of Diagnostic Code 6602. As regards the old rating criteria (prior to October 7, 1996) the examiner must describe the frequency of asthma attacks, the extent of dyspnea on exertion and whether the asthma is mild, moderate, severe or pronounced in degree. 2. The RO should schedule the veteran for a VA dermatological examination to determine the current extent of the veteran's service-connected skin disorder. All pertinent clinical findings should be reported in detail. The claims folder should be made available to the examiner for review prior to examining the veteran. The examiner should state that he has reviewed the claims folder in his examination report. After the examination, the examiner should specifically comment as to whether the veteran's service-connected skin disorder results in constant exudation or constant itching, or extensive lesions or marked disfigurement. This is requested to specifically address the presence or absence of pathology required for the 30 percent rating under Diagnostic Code 7806. The examiner should also specially be requested to comment on whether the service-connected skin disorder involves ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or produces exceptional repugnance. This is requested to specifically address the presence or absence of pathology required for the 50 percent rating under Diagnostic Code 7806. 3. Then, the RO should review the veteran's claims for increased ratings for his asthma and skin disorder. If the benefits sought are not granted, the veteran and his representative should be provided a supplemental statement of the case and afforded a reasonable opportunity to respond. The case should then be returned to this Board for its further appellate consideration, if otherwise appropriate. No action is required of the veteran until he is so informed. The purpose of this remand is to obtain additional clarifying clinical evidence. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21- 1, Part IV, paras. 8.44-8.45 and 38.02-38.03. BRUCE E. HYMAN Member, Board of Veterans' Appeals