Citation Nr: 0001343 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 99-18 381 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to an increased disability rating for exostosis, metatarsal, left foot, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: James W. Stanley, Jr. WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. L. Wight, Associate Counsel INTRODUCTION The veteran served on active duty from October 1967 to April 1969. This case comes before the Board of Veterans' Appeals (Board) by means of a November 1996 rating decision rendered by the No. Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA) wherein service connection for post-traumatic stress disorder was denied. The veteran also appeals a July 1999 rating action wherein an increased disability evaluation for exostosis, metatarsal, left foot, was denied. The Board notes that on a VA Form 21-4138, Statement in Support of Claim, received by the RO in September 1984, the veteran appears to raise the issues of entitlement to service connection for various conditions related to alleged exposure to herbicidal agents. The claimed disabilities include a rash on all sides of his torso, arms, neck, and face; dizziness; and pains in his stomach. The issue of a skin condition due to herbicide exposure was addressed in a November 1996 rating action; however, no decision has been made as to dizziness and stomach pain due to herbicide exposure. Similarly, in an August 1995 VA Form 21-4138, Statement in Support of Claim, the veteran appears to raise the issue of entitlement to service connection for peripheral neuropathy due to herbicide exposure. No decision has been rendered as to a claim for service connection for peripheral neuropathy. Accordingly, these matters are referred to the RO for further development as appropriate. FINDINGS OF FACT 1. A nexus between a current diagnosis of PTSD and the veteran's active military service is not shown. 2. All evidence necessary for an equitable disposition of the veteran's claim for an increased disability rating for exostosis of the left foot has been developed. 3. The veteran's exostosis of the left foot is manifested by moderate symptomatology including a spicule of bone and complaints of foot pain with very minimal functional loss or limitation due to pain; moderately severe symptomatology is not shown. CONCLUSIONS OF LAW 1. A claim for service connection for post traumatic stress disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). 2. The criteria for an increased disability rating for exostosis of the left foot are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, §§ 4.20, 4.40, 4.45, 4.71a, 4.118, Diagnostic Codes 7804, 7805, 5284 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question that must be resolved with regard to each claim is whether the appellant has presented evidence that each claim is well grounded; that is, that each claim is plausible. If he has not, the appeal fails as to that claim, and the Board is under no duty to assist him in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). I. Service Connection for PTSD In order to establish a "well grounded" claim for service connection for a particular disability, the veteran needs to provide evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible or meritorious on its own and capable of substantiation. Franko v. Brown, 4 Vet.App. 502, 505 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 610-611 (1992); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Generally, the three elements of a "well grounded" claim are: (1) evidence of a current disability as provided by 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 inservice disease or injury and the current disability as provided by competent medical evidence. Caluza v. Brown, 7 Vet.App. 498, 506 (1995); see also 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection for post-traumatic stress disorder (PTSD) requires (1) medical evidence establishing an accepted diagnosis of the condition, (2) credible supporting evidence that the claimed inservice stressor actually occurred, and (3) a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304 (f) (1999). The Board concludes that medical evidence is needed to lend plausible support for the issues presented by this case because they involve questions of medical fact requiring medical knowledge or training for their resolution. Caluza. See also Layno v. Brown, 6 Vet.App. 465, 470 (1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). In the instant case, the evidence does not show a link, established by medical evidence, between the veteran's current PTSD symptomatology and the claimed inservice stressor. Accordingly, a claim of entitlement to service connection for PTSD fails. The evidence shows a post service diagnosis of PTSD. While post service VA medical records from July 1997 to October 1999 do not indicate a diagnosis of PTSD, the veteran has submitted an October 1999 statement from Dr. Richard D. Peek, his private orthopedist, reporting a diagnosis of post- traumatic stress disorder. While the veteran has a current diagnosis of PTSD, in order to establish a well grounded claim, there must also be medical evidence linking his PTSD symptomatology to his claimed in service stressors. While the veteran has related several events during service that he attributes as stressors, the evidence simply does not show that any medical expert has linked his claimed stressors and his the single diagnosis of PTSD. While Dr. Peek has stated that the veteran has PTSD (whether acute or chronic he did not say), he did not relate it to any specific stressors, inservice or otherwise, and there is no legal authority to support the position that there is a nexus by implication. In fact, as the doctor did not refer to any medical or historical evidence whatsoever. In view of the foregoing, the link between current symptoms and an in-service stressor required by 38 C.F.R. § 3.304 (f) does not exist and we are obliged to eschew alchemy to attempt to conjure one. The Board notes the contentions of the veteran raised in his hearing before a Regional Office Hearing Officer in June 1997 and before the undersigned Board Member in an October 1999 Travel Board Hearing that his current PTSD is related to stressors during his active military service in Southwest Asia. The veteran, while entirely competent to report his symptoms both current and past, has presented no clinical evidence or medical opinion that would establish a link between his current PTSD and his claimed inservice stressors. In the absence of evidence indicating that the veteran has the medical knowledge or training requisite for the rendering of clinical opinions, the Board must find that his contentions with regard to the etiology of any current PTSD to be of no probative value. See Moray v. Brown, 5 Vet. App. 211 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). As previously stated, the regulations require a link, established by medical evidence, between the veteran's current PTSD symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304 (f) (1999). The evidence shows a diagnosis of PTSD; however, no health care provision has linked his current PTSD to his claimed in service stressors. Since service connection cannot be granted for a disability that is not shown to have a nexus to active military service, the Board must accordingly find that a claim for service connection for any such disability is not well grounded and therefore must be denied, pursuant to the decision of the United States Court of Appeals for Veterans Claims (Court), formerly the United States Court of Veteran's Appeals, in Edenfield v. Brown, 8 Vet. App. 384 (1995). See also Rabideau v. Derwinski, 2 Vet. App. 141 (1992), and Brammer v. Derwinski, 3 Vet. App. 223 (1992). Likewise, the Board must find that the veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual at this time that service connection for PTSD could be granted, as is required under the provisions of 38 U.S.C.A. § 5107(a) (West 1991) and 38 C.F.R. § 3.304 (1999). See also Tirpak v. Derwinski, 2 Vet. App. 609, 610- 11 (1992). The Court has held that, when a claimant fails to submit a well-grounded claim under 38 U.S.C.A. § 5107(a) (West 1991), VA has a duty under 38 U.S.C.A. § 5103(a) (West 1991) to advise the claimant of the evidence required to complete his or her application, in circumstances in which the claimant has referenced other known and existing evidence. Robinette v. Brown, 8 Vet. App. 69 (1995); see also Epps v. Brown, 9 Vet. App. 341 (1996) and McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997) (per curiam). The Board also notes that its duty to assist the veteran in the development of her claim, as stipulated in 38 U.S.C.A. § 5107(a) (West 1991), does not arise until a claim is shown to be well grounded. The Board would also point out that the veteran is free to submit new and material evidence, and reopen his claim for service connection, at any time. II. Increased Disability Rating for Exostosis, Metatarsal, Left Foot Generally, claims for increased evaluations are considered to be well grounded. A claim that a condition has become more severe is well grounded where the condition was previously service connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). Accordingly, the Board finds that the veteran's claim for a increased disability rating for exostosis, metatarsal, left foot, 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 alleged that any records of probative value that may be obtained and which have not already been associated with his claims folder are available. The Board accordingly finds that the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. Service connection for exostosis, metatarsal, left foot, was established by means of a June 1982 rating action as service medical records indicate that the veteran had a one centimeter by one centimeter healing abrasion on the dome of his left foot after having difficulty with his boots while on active duty. A 10 percent disability rating was assigned effective August 20, 1981, the date of claim on appeal. The RO, by means of a July 1999 rating action denied an increased disability rating for this disability. The veteran appeals this rating action and contends that his exostosis of the left foot is more severe than currently evaluated and that an increased disability rating is warranted. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). The percentage ratings in the Schedule for Rating Disabilities represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1 (1999). Moreover, each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). While exostosis is not listed in the Schedule, it is permissible, when an unlisted condition is encountered, 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. 38 C.F.R. § 4.20 (1999). Accordingly, the veteran's current exostosis of the left foot is currently evaluated under Diagnostic Code 7804 as a superficial scar. Under these criteria, a 10 percent disability rating is appropriate for a superficial scar that is painful and tender on objective examination. A 10 percent disability evaluation is the maximum schedular rating obtainable under Diagnostic Code 7804. 38 C.F.R. § 4.118 (1999). Under Diagnostic Code 7805, scarring may be rated on limitation of function of the body part affected. Under Diagnostic Code 5284, unspecified foot injuries with moderate symptomatology warrant a 10 percent disability. For moderately severe symptomatology, a 20 percent disability rating is appropriate. 38 C.F.R. § 4.71a (1999). The terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (1999). It should also be noted that use of terminology such as "mild" or "moderate" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). A December 1998 VA examination report indicates that the veteran complained of multiple areas of difficulty involving his left lower extremity as well as his back. He indicated that he was to receive back surgery the day after the examination. He walked with a slow halting gait relying heavily on a cane. Objective examination of his left lower extremity revealed some increase in pigmentation of the skin overlying the metatarsotarsal articulation of the first metatarsal unit. A very small, firm area with a pointed feel was noted after the examiner palpated along the course of the second metatarsal. The examiner stated that it was difficult to assess the dimensions, but that it felt "extremely small." The veteran complained of pain in this area as it was palpated. He indicated that the pain ran up the posterior leg and thigh and into his back. The ankle showed complete range of motion and the hindfoot was mobile. No vascular impairment was observed. The examiner noted that he could not find evidence of excessive scar within the soft tissues. The report indicates that direct compression of the soft tissues over the surface of this "rather sharp, small spicule" is capable of producing local tenderness which would be relieved by adequate padding, adequate shoe sizing, or surgical excision. A September 1999 VA examination report indicates that the veteran's left foot remained tender in the region of the bony prominence. This condition results in a point of irritation when he wears a tight shoe. The report indicates that the veteran usual wears a pad over this area and wears a sandal. Physical examination revealed that his skin was intact at the apex of the mass when it is palpated. The veteran complained of localized pain with some pain running up into the posterior foot and dorsum of the foot. No vascular impairment was noted. The examination report indicates that the veteran did not have any restriction of range of motion. While the examiner noted that the spicule would produce pain, particularly when a tight fitting shoe is worn on the left foot, the pressure could be relieved by padding, which would be temporary, and adequate shoe fitting, or surgical excision. At an October 1999 Travel Board Hearing, the veteran indicated that he has difficulty standing on his left foot due to pain and that this affected his work as a Postal Service employee. Based on the evidence as set forth above, the Board finds that the veteran's exostosis of the left foot results in moderate disability. While the veteran experiences pain as a result of the spicule in his left foot, the evidence does not show that his disability is moderately severe as contemplated by an increased disability rating. The veteran is competent to report increased disability; however, the findings of the trained medical professionals are substantially more probative as to the extent of his left foot exostosis disability. VA examination shows no functional loss in the use of his left foot. Accordingly, an increased disability evaluation under Diagnostic Code 5284 is not warranted. The Court has held that assignment of disability ratings for orthopedic disabilities is to include consideration of the regulatory provisions set forth in 38 C.F.R. §§ 4.40 and 4.45, wherein functional loss, as shown by "adequate pathology," is deemed integral to ascertaining the severity of such disabilities. DeLuca v. Brown, 8 Vet. App. 202 (1995). In the instant case, the most recent VA examination report of September 1999 indicates that "the spicule of bone itself produces very minimal functional loss or limitation due to pain." As there is very minimal function loss or limitation, the Board finds that the current 10 percent disability evaluation sufficiently reflects the level of functional impairment demonstrated. Moreover, the Board notes that in a September 1999 letter from the veteran's representative indicates that the veteran concedes that a schedular rating in excess of 10 percent is not warranted, but that an increased extraschedular rating is warranted as the veteran's exostosis "clearly caused marked interference with employment." Preliminary review of the record does not reveal that the RO expressly considered referral of the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1999). This regulation provides that, to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Under Secretary for Benefits or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked inference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. VAOPGCPREC. 6-96 (1996). The objective medical evidence does not show that his employment impairment is a result of his exostosis. On the contrary, a January 1999 statement from the veteran's private physician indicates that the veteran employment impairment is secondary to "surgical treatment of his back which includes a fusion." Accordingly, the Board finds that extraschedular consideration is not warranted as no exceptional or usually disability picture has been presented that would render rating the veteran's disability under the Schedule impractical. In brief, the preponderance of the evidence is against the veteran's claim for an increased rating for exostosis of the left foot, as the diagnostic criteria for an increased rating for this disability are not satisfied. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, §§ 4.20, 4.40, 4.45, 4.71a, 4.118, Diagnostic Codes 7804, 7805, 5284 (1999). ORDER Service connection for post-traumatic stress disorder (PTSD) is denied. An increased disability rating for exostosis of the left foot is denied. MARK W. GREENSTREET Member, Board of Veterans' Appeals