Citation Nr: 0002828 Decision Date: 02/04/00 Archive Date: 02/10/00 DOCKET NO. 96-34 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for residuals of exposure to mercury, residuals of exposure to blood-borne pathogens, residuals of asbestos exposure, motion sickness, an obesity disability, a coccyx disability, a psychiatric disability, shin splints, a bilateral knee disability, migraine headaches and a visual disability. 2. Entitlement to compensable evaluations for hemorrhoids, residuals of hepatitis and a skin disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. A. Caffery, Counsel INTRODUCTION The veteran retired from the Navy in November 1994 after more than 17 years of active service as a laboratory technician. In a July 1995 rating action the Department of Veterans Affairs (VA) Regional Office (RO), Chicago, Illinois, denied entitlement to service connection for residuals of exposure to mercury, residuals of blood-borne pathogens, residuals of asbestos exposure, motion sickness, obesity, a coccyx disability, a psychiatric disability, shin splints, a bilateral knee disability, migraine headaches, a visual disability, and allergic rhinitis/sinusitis post septoplasty for deviated nasal septum. That rating action granted service connection for hemorrhoids, residuals of hepatitis and a skin disability, each rated noncompensable. The RO also denied entitlement to a 10 percent evaluation based upon multiple, noncompensable service-connected disabilities. The veteran appealed from those decisions. In December 1996 the veteran testified at a hearing at the regional office. In December 1997 the regional office hearing officer granted service connection for sinusitis with a history of allergic rhinitis and residuals of a septoplasty for a deviated nasal septum, each rated noncompensable. A 10 percent evaluation based on multiple noncompensable service-connected disabilities was also granted. Since those issues have been resolved in the appellant's favor, they are removed from appellate status and will not be further considered in this decision. The remaining issues are now before the Board for appellate consideration. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the regional office. 2. Residuals of exposure to mercury, residuals of exposure to blood-borne pathogens, residuals of asbestos exposure, chronic motion sickness, a chronic coccyx disability, a chronic psychiatric disability, chronic shin splints and a chronic bilateral knee disability were not demonstrated during the veteran's active service. Those conditions have not been currently medically demonstrated. 3. Headaches were not reported on the veteran's physical examination for entry into service. Data recorded for clinical purposes during service clearly establishes that she had headaches prior to service which she referred to as migraine headaches, but the diagnosis of migraine headache was not established until 1980. 4. There was an increase in severity of the veteran's preexisting headache disorder during service which cannot be considered to be a natural progression of the disorder. 5. The veteran has eye conditions which are various types of refractive error. Her vision is correctable to better than 20/40 in each eye and she has no visual field impairment. 6. The veteran was overweight at entry into service and at final separation. During service her weight varied and she was under various forms of weight management. 7. Her obesity is not due to any underlying disability or metabolic abnormality and has been diagnosed as exogenous obesity. 8. The veteran's hemorrhoids are productive of no more than mild or moderate disability. 9. The veteran had hepatitis B in 1978. She healed and has been asymptomatic for many years. Her hepatitis not resulted in any demonstrable liver damage. 10. The veteran's skin disorder has short, widely spaced periods of exacerbation, and even during periods of exacerbation it does not result in exfoliation, exudation or itching involving an exposed surface or extensive area. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of well-grounded claims for service connection for residuals of exposure to mercury, residuals of exposure to blood-borne pathogens, residuals of asbestos exposure, chronic motion sickness, a chronic obesity disability, a chronic coccyx disability, a chronic psychiatric disability, chronic shin splints and a chronic bilateral knee disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991). 2. While the veteran's headaches clearly and unmistakably preexisted her military service, service connection is in order as the preexisting headache disorder was aggravated during service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137, 5107 (West 1991); 38 C.F.R. § 3.306 (1999). 3. The veteran does not have a disease of the eyes or chronic visual impairment or visual field disability other than refractive errors for which service connection may be established. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.303, 4.9, 4.84a (1999). 4. Compensable evaluations for hemorrhoids, residuals of hepatitis and a skin disability are not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Codes 7336, 7345, 7806 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question to be answered with regard to the veteran's claims for service connection for the conditions at issue and for increased evaluations for the disabilities at issue is whether she has presented evidence of well-grounded claims; that is, claims which are plausible. If she has not presented well-grounded claims, her appeal must fail and there is no duty to assist her further in the development of the claims because such additional development would be futile. 38 U.S.C.A. § 5107(a); effective on and after September 1, 1989. As will be explained below, the Board finds that the claims for service connection for residuals of exposure to mercury, residuals of exposure to blood-borne pathogens, residuals of asbestos exposure, motion sickness, an obesity disability, a coccyx disability, a psychiatric disability, shin splints and a bilateral knee disability are not well grounded. The Board finds that the other claims are well grounded. The Board has reviewed the April 1995 VA examinations and finds that they are set forth in considerable detail without any errors or irregularities that would warrant a conclusion that they were inadequate for their stated purposes. Accordingly, reexamination of the veteran at this time is not considered to be warranted. I. The Claims for Service Connection for Residuals of Exposure to Mercury, Residuals of Exposure to Blood-Borne Pathogens, Residuals of Asbestos Exposure, Motion Sickness, Obesity, a Coccyx Disability, a Psychiatric Disability, Shin Splints and a Bilateral Knee Disability The veteran's service medical records, including the report of her physical examination for retirement from service in 1994, do not reflect any exposure to mercury, blood-borne pathogens or asbestos. When she was examined for entry into service in August 1976 she indicated that she had or had had air sickness. She also reported that she had or had had a recent gain or loss of weight. Her weight was 160 pounds. She was 11 pounds overweight and apparently initially classified as not qualified for enlistment; however, on a subsequent screening her weight was listed as 147 and she was found qualified for enlistment. In November 1987, while being evaluated for obesity, it was reported that she had been overweight since age 13. The assessment was exogenous obesity. Other service medical records show widely varying weights and confirm that medical tests and examinations had found no medical cause. From 1991 to 1994 she was regularly assigned to mandatory physical conditioning programs. In late 1993 she was referred for inpatient obesity treatment at a military rehabilitation center. At that time her weight was 177 pounds. When she was examined for retirement from service in September 1994, her weight was listed as 155 pounds. On VA examination in April 1995 it was noted that she had had a weight gain of 40 pounds in the last 4 months and weighed 190 pounds. Mild obesity was reported. The veteran's service medical records further reflect that in February 1994 she fell and sustained a contusion of the coccyx. In August 1994 she was seen for stress. When she was examined for retirement from service she reported bilateral knee pain. She also again indicated that she had or had had air sickness. The veteran was afforded a VA general medical examination in April 1995. She indicated she had been a laboratory technician at a medical laboratory for the previous 15 years. She indicated that she had had knee problems after a fall about 2 years previously and had pain and stiffness in her knees and low back. She also reported that she had had motion sickness, but used patches which took care of that condition. She reported that she had been exposed to mercury while working in the hematology laboratory. She confirmed that she did not have any current symptoms referable to mercury poisoning. She had also had an exposure to asbestos 8 years previously while in Okinawa. The naval hospital was being renovated at that time and because of the renovations she felt she was exposed to asbestos. Various findings were recorded on the physical examination. The diagnoses included history of exposure to asbestos, history of hepatitis B and history of exposure to mercury. The veteran was also afforded a VA orthopedic examination. She reported that for 2 years, until November 1994 she had been bothered with shin splints. She had not had a problem since she stopped running after leaving the Navy. She complained of a pulling sensation in her knees while going up and down stairs. For the previous 1 1/2 years since a fall on ice she had had constant pain in her coccyx. On examination she stood erect and walked without a limp. With regard to the lower extremities there was no deformity or asymmetry. There were some hyperextensibility of the knees and symmetrically increased genu valgus. Straight leg raising was performed to 50 degrees bilaterally at which elevation she stated she developed a pulling in her knees and anterior thighs. With the knees flexed both hips flexed to 100 degrees. The circumference of both knees was 14 1/2 inches. In indicating the location of the coccyx pain the veteran placed her hand over the sacrum. A rectal examination was performed. The coccyx was grasped between the thumb and index finger and the veteran did not complain of pain on pressure or movement of the coccyx. She complained of some pain to pressure over the sacrum. X-rays of the lumbosacral spine and pelvis showed no evidence of fracture, dislocation or other bony abnormality except for some mild degenerative changes at L2 - L3. X-rays of both knees showed no evidence of fracture, dislocation or other bony abnormality. The diagnoses included history of shin splints, asymptomatic and without objective evidence of disability, history of stiffness of the knees, currently without objective evidence of disability or an orthopedic impairment, and history of coccygeal pain, without objective evidence of disability. The veteran was also afforded a VA psychiatric examination. She had had a psychiatric problem about 6 or 7 years previous. While working under stressful conditions at a military hospital she had received a diagnosis of an adjustment disorder. She had been given about a month of convalescent leave for that condition. She had been working in a laboratory and felt that the chief she was working for was doing illegal things. He had been showing so much favoritism that several of them filed a complaint. She somehow was singled out and told they were going to get rid of her. She was later transferred and went to another department and everything was all right. After that episode she had been transferred to a hospital where she was in charge of a section and when she left she was in charge of the entire laboratory. The last 6 years of her life had been fine. She currently resided with her husband and their son. She did the housework, watched television, read and saw friends. On mental status examination the veteran was described as a vivacious person who related easily and warmly. Her affect was of a wide range. There was no evidence of any perceptional disturbance. She was well oriented. Her sensorium was clear. Her recent and remote memory were intact. The examiner indicated that she had no psychiatric disorder and that she was not disabled by any disorder. "A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). A service connection claim must be accompanied by evidence which establishes that the claimant currently has the claimed disability. Rabideau v. Derwinski, 2 Vet. App. 141 (1992). A well-grounded claim requires more than an allegation; the claimant must submit supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). In this case the veteran's service medical records do not clearly establish that she was exposed to significant levels of mercury, blood- borne pathogens or asbestos. However, even if such exposure could be presumed from her occupation during service as a laboratory technician, service connection is not established for exposure. Service connection may only be established for disability medically or legally recognized as due to such exposure. 38 C.F.R. § 3.303. Disability residual to any such exposure was not demonstrated on the April 1995 VA examinations, and the appellant has not submitted any medical evidence which indicates that she has any disability which could possibly be attributed to such exposure. In the absence of any evidence of current, related disability, these claims are simply not well grounded. The appellant reported that she had or had had air sickness when she was examined for entry into service and she again referred to that condition on her physical examination for retirement from service. Her air sickness (motion sickness) has been described as an acute condition brought about by exposure to the motion of an aircraft while in flight. On termination of the flight, the condition cleared. It is also controllable by timely use of several medications. When she was examined in April 1995 she related that she used patches that took care of the problem. In short, the condition described is an acute environmentally caused illness which leaves no chronic disability once she leaves that environment. In the absence of any evidence of chronic disability, this claim is also not well grounded. When the appellant was initially examined prior to entry into service she was described as overweight. Her service medical records show that she had recurrent fluctuations in weight during service and was afforded medical evaluations, conditioning programs and rehabilitation; however, despite extensive medical evaluations, her obesity has never been attributed to any underlying medical condition. It has been described as exogenous (due to overeating) obesity. While the term "compulsive overeating" was used, no such compulsive disorder is recognized as a psychiatric disability by the American Psychiatric Association. Obesity is also not recognized by the VA as a ratable disability within the Rating Schedule (38 C.F.R. Part 4). Since obesity is not medically recognized as a chronic disability, and in the absence of a diagnosed disability for which obesity could be recognized as a symptom, it would appear that this claim is also not well grounded. Even if obesity were defined as a chronic disability, there is no evidence that the condition was incurred or aggravated during active military service. It is clear that the appellant was overweight before service and when she was examined for retirement from military service, her weight was 5 pounds less than it was at the time she was examined for entry into service. Gains and losses of weight in service are not clear exacerbation of any symptomatology and thus would not constitute an aggravation of disability. Thus, there is no basis for her claim that her obesity is a disability which began in service. Although the appellant sustained a contusion of the coccyx during service and was seen for stress and also reported bilateral knee problems, a coccyx disability, chronic acquired psychiatric disability, and bilateral knee disability were not demonstrated on the April 1995 VA examinations; and have not been reported since service by any medical authority. The VA examiner found that there was no objective evidence of a coccyx or knee disability and those conditions were diagnosed by history only. Shin splints were also diagnosed by history only, and the appellant has stated that such symptoms stopped after service. The psychiatric examiner concluded that she had no chronic psychiatric disorder after an extensive examination and detailed review of her past medical history. In view of the foregoing discussion, the Board concludes that the veteran has not met the initial burden of presenting evidence of well-grounded claims imposed by 38 U.S.C.A. § 5107. It follows that favorable action in connection with the appeal for service connection for residuals of exposure to mercury, residuals of exposure to blood-borne pathogens, residuals of asbestos exposure, motion sickness, obesity, a coccyx disability, a psychiatric disability, shin splints and bilateral knee disability is not in order. The Board also views its discussion in this case as sufficient to inform the veteran of the elements necessary to complete her applications for a claim for service connection for and of those conditions. See Robinette v. Brown, 8 Vet. App. 69 (1995). II. Claims for Service Connection for Migraine Headaches and a Visual Disability The veteran's service medical records reflect that when she was examined for entry into service in August 1976 headaches were neither reported by the veteran nor found by the examiner. The service medical records reflect that her initial, medically documented treatment for headaches was in July 1978. At that time a past history of migraine headaches was reported. She was assessed as having tension and vascular headaches. Subsequent service medical record entries refer to a history of, and recurrent treatment for headaches, variously diagnosed as of the tension and/or vascular (migraine) type, which were not controlled with most of the usual medications. An evaluation of June 1982 noted that the headaches had been present prior to service, but had increased in severity since entry. Numerous subsequent evaluations and reports of emergency room treatment for headaches which included nausea and vomiting are of record. The veteran was afforded a VA neurological examination in April 1995. She reported that she had had chronic headaches since age 13, but they had been getting progressively worse in intensity and frequency. The headaches occurred about once a week and severe headaches occurred about once per month. The severe headaches were associated with vomiting and photophobia. During the episodes of severe headache she was totally incapacitated. Her medication for the headaches included Motrin and Benadryl. The neurological examination was normal. The diagnosis was vascular headaches, common migraine type. During the course of the December 1996 hearing on appeal, the veteran related that when she entered service she was taking aspirin for headaches and by her second tour she was being seen in the emergency room and receiving injections of narcotics. During service there had been a dramatic increase in severity of her headaches. She still had many, many headaches. A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). A veteran who served during a period of war or during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. § 1111, 1137. Headaches were neither reported by the veteran nor found by the examiner when she was examined for entry into service in August 1976. Data recorded for clinical purposes during service reflects that the veteran had had headaches prior to entering service and the veteran has also conceded that her headaches pre-existed service. Thus, the presumption of soundness at induction is rebutted and the only question for consideration with regard to the veteran's claim for service connection for headaches is whether the headaches were aggravated in service. In order to establish service connection by way of aggravation, it must be shown that there was an increase in severity of the basic underlying disability during service. In this regard, the veteran's service medical records reflect that she was observed and treated repeatedly for headaches, starting in 1978. The detailed and extensive service medical records show that the headaches became more frequent over the years and also increased in intensity. In essence, the records establish that there was an increase in severity of her preexisting headaches in service. At the April 1995 VA neurological examination she reported that she had headaches occurring about once a week and severe headaches occurring once per month that were totally incapacitating, thus indicating that they have not abated on removal of the stress of military life. In the Board's judgment, the evidence of record does establish that there was an aggravation of the veteran's headache disability during her active military service. Accordingly, under the circumstances, it follows that entitlement to service connection for migraine headaches by reason of aggravation is established. With regard to the veteran's claim for service connection for a visual disability, the veteran's service medical records reflect that when she was examined for retirement from service in September 1994 it was indicated that she had defective vision that was correctable to 20/20 and was not considered disqualifying. The veteran was afforded a VA visual examination in April 1995. It was indicated that her vision without correction was 20/400 in the right eye and counting fingers in the left eye. Her vision with best correction by a myopic astigmatic prescription was 20/25 plus 2 in the right eye and 20/20 in the left eye at distance and near. It was indicated that she had a severe myopic asymmetric refractive error along with conversion sense deficiency. During the December 1996 hearing on appeal, the veteran related that prior to entering service she had worn glasses but she was of the opinion that her duties as a laboratory technician during service, which required looked into a microscope often, caused her eyes to progressively get worse. She believed there was a causal relationship between her duties in service and her vision deterioration. The April 1995 VA vision examination showed that the veteran had myopia, conversion sense deficiency and an astigmatism. Such conditions are considered to be types of refractive error and as such are not a disease or disability for which service connection may be established. 38 C.F.R. § 3.303. The Board would note that the Rating Schedule (38 C.F.R. Part 4) provides for service connection for a variety of visual disabilities, see 38 C.F.R. § 4.84a, Codes 6000-6035, but the visual conditions which the veteran has are not listed. In essence, vision disorders are rated on the basis of impairment of corrected visual acuity and impairment of field vision; neither of which has been reported by the examiners here. Furthermore, no medical authority has expressed an opinion that any change in her vision during service was related to her duties in any way, or was anything other that the natural progress of the condition. Accordingly, under the circumstances, it follows that entitlement to service connection for a visual disability is not in order. III. Claims for Compensable Evaluations for Hemorrhoids, Residuals of Hepatitis and a Skin Disability The veteran's service medical records reflect that she had hepatitis B in 1978. She was treated for bleeding hemorrhoids in service. She also had dermatitis of the right leg during service. The veteran was afforded a VA gastrointestinal examination in May 1995. She gave a 15-year history of bright red blood from the rectum on an intermittent basis. She also referred to occasional constipation. On physical examination the abdomen was soft and nontender. There was no hepatosplenomegaly. The rectal examination showed no masses and the hemoccult test of the stools was negative. A colonoscopy was performed and was essentially normal up to the cecum. In the rectum there was some hypertrophic papillae with minimal erythema. An assessment was made of history of rectal bleeding, probably secondary to hemorrhoids. A noncompensable evaluation is warranted for mild or moderate external or internal hemorrhoids. A 10 percent evaluation requires large or thrombotic, irreducible hemorrhoids with excessive redundant tissue evidencing frequent recurrences. 38 C.F.R. Part 4, Code 7336. When the veteran was examined by the VA in May 1995 she reported a 15-year history of rectal bleeding and episodes of constipation. However, the rectal examination showed no masses and the hemoccult test of the stools was negative. A colonoscopy was also performed which was normal. Hemorrhoids as such were not reported by the examiner on the examination. The evidence indicates that the veteran's hemorrhoids are productive of no more than mild or moderate disability and as such would not warrant entitlement to a compensable evaluation under the provisions of Diagnostic Code 7336. The May 1995 VA gastrointestinal examination noted that the veteran had had hepatitis B in 1978 while working as a laboratory technician. She had recovered from that episode and there had been no further evidence of chronicity. On examination there were no stigmata of chronic liver disease. Testing showed a hemoglobin of 15 with a hematocrit of 43.5. Platelet count was 269. SGOT was 16 and alkaline phosphatase was 58. Total bilirubin was .6. The hepatitis C antibody was nonreactive and the hepatitis B markers including the hepatitis B surface antigen were nonreactive. The hepatitis B surface antibody as well as the hepatitis B core antibodies were reactive. The examiner noted that the veteran had a history of acute hepatitis B in service but concluded that the current serology was consistent with an old healed infection and there was no evidence of chronic liver disease at the current time. Healed, nonsymptomatic infectious hepatitis warrants a noncompensable evaluation. A 10 percent evaluation requires demonstrable liver damage with mild gastrointestinal disturbance. 38 C.F.R. Part 4, Code 7345. The veteran had an acute episode of hepatitis B during service in 1978. However, the subsequent service medical records do not reflect any subsequent manifestations of , or treatment for any problems which were considered to be residual to hepatitis. When she was examined by the VA in 1995 the physical examination showed no stigmata of chronic liver disease and it was concluded that the current laboratory studies showed that the old infection had healed. There was no evidence of chronic liver disease at the current time. Compensation is not awarded for disease or injury; rather, it is awarded based on the current residual disability which can be attributed to the illness. In the absence of any current pathology involving the liver, entitlement to a compensable evaluation for the residuals of hepatitis would not be warranted. Service medical records show treatment for a rash of the lower extremities in 1978, shortly before she developed hepatitis. A skin problem of the right anterior shin was treated in November 1983 and she was seen for a similar problem, diagnosed as pre-tibial myxedema in June 1985. In early 1991, January 1992 and February 1993 she was treated for skin problems in the same area with no clear diagnosis established. In June 1993 the condition was again noted and referred to as a chronic dermatitis. No skin problems were reported by the veteran on her final separation examination and none were noted on the clinical evaluation at that time. When the veteran was afforded a VA skin examination in April 1995, she indicated that she had developed a pruritic eruption 16 years previously that was localized to the right anterior leg. The eruption lasted for several weeks. There had been another episode in February 1993 and had lasted 2 months. After the process resolved there had been some hyperpigmentation. On examination, there was lacy hyperpigmentation, mildly brown, on the anterior aspect of the veteran's right leg that was about 6 to 7 centimeters in diameter. The impression was hypersensitivity eruption. Unless otherwise provided, skin disorders are rated under the standards set out for eczema, dependent on location, extent, and repugnant or otherwise disabling character of manifestations. 38 C.F.R. § 4.118, note following code 7819. A noncompensable evaluation is warranted for eczema when there is slight, if any, exfoliation, exudation or itching which is on a nonexposed surface or small area. A 10 percent evaluation requires exfoliation, exudation or itching and involvement of an exposed surface or extensive area. 38 C.F.R. Part 4, Code 7806. In this case, the service medical records confirm the episodes reported by the appellant. The April 1995 VA skin examination confirmed the residual, in the form of an area of hyperpigmentation on the anterior aspect of the veteran's right leg. However, the condition involved a small area. There was no exfoliation or exudation shown and itching was not reported by the veteran. The manifestations of the veteran's skin condition as shown on the VA examination would not warrant entitlement to a compensable evaluation under the provisions of Diagnostic Code 7806. Furthermore, given the relative infrequency and limited extent of the manifestations reported by the appellant even during the height of a period of exacerbation, the manifestations do not reach the level required for a compensable evaluation. Ardison v. Brown, 6 Vet. App. 405 (1994). The Board has carefully reviewed the entire record in this case, including the testimony presented by the veteran at the December 1996 hearing on appeal; however, the Board does not find the evidence to be so evenly balanced that there is doubt as to any material issue regarding the veteran's claims for service connection for a visual disability and for compensable evaluations for the hemorrhoids, residuals of hepatitis and skin disability. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for migraine headaches is established. To this extent, the appeal is allowed. Entitlement to service connection for residuals of exposure to mercury, residuals of exposure to blood-borne pathogens, residuals of asbestos exposure, motion sickness, obesity, a coccyx disability, a psychiatric disability, shin splints, a bilateral knee disability, and a visual disability is not established. Entitlement to compensable evaluations for hemorrhoids, residuals of hepatitis and a skin disability is not established. To this extent, the appeal is denied. ROBERT D. PHILIPP Member, Board of Veterans' Appeals