Citation Nr: 0007531 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 94-44 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for residuals of an acoustic neuroma, including facial disfigurement, facial palsy, vision problems, loss of memory, headaches and head pain, hearing loss, tinnitus, dizziness, and problems with movement. 2. Entitlement to service connection for a skin disorder. 3. Entitlement to a compensable initial rating for allergic rhinitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Stephen L. Higgs, Associate Counsel INTRODUCTION The veteran served on active duty from April 1973 to March 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in November 1993 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. This case was the subject of a July 1999 hearing before the undersigned Board member. The veteran's July 1999 Board hearing testimony gives rise to a claim for service connection for tearing of the right eye, to include as secondary to her service-connected allergic rhinitis. This matter is referred to the RO for appropriate action. The issue of entitlement to an increased rating for allergic rhinitis is addressed in the REMAND portion of this action. FINDINGS OF FACT 1. The veteran had a bicycle accident in which she injured her head during service. 2. The veteran alleges exposure to substantial noise during service. 3. There is no competent medical evidence of a nexus between the veteran's residuals of acoustic neuromas and her period of active duty service. 4. The claim for service connection for a skin disorder is not plausible. CONCLUSIONS OF LAW 1. The claim for service connection for residuals of an acoustic neuroma including facial disfigurement, facial palsy, vision problems, loss of memory, problems with dizziness and movement, headaches and head pain, hearing loss, and tinnitus is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for a skin disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Law -- Well Grounded Claims A person claiming VA benefits must meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well grounded is plausible, meritorious on its own, or capable of substantiation. Murphy, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). For purposes of determining whether a claim is well grounded, the Board presumes the truthfulness of the supporting evidence. Arms v. West, 12 Vet. App. 188, 193 (1999); Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). The quality and quantity of evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). If the veteran has not presented a well-grounded claim, her appeal on the pertinent issues must fail and there is no duty to assist her further in the development of the claim. 38 U.S.C.A. § 5107(a). See Epps v. Gober, 126 F.3d 1464 (1997). Recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim that is not well grounded. Morton v. West, 12 Vet. App. 477 (1999). Generally, in order for a claim for service connection to be well-grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995); 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. In establishing a well-grounded claim pursuant to 38 C.F.R. § 3.303(b), the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation cannot constitute evidence to render a claim well- grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Id. Acoustic Neuroma and Residuals The veteran seeks service connection for an acoustic neuroma and associated residuals, to include facial disfigurement, facial palsy, vision problems, memory loss, headaches and head pains, hearing loss, tinnitus, and dizziness and problems with movement. She points to an inservice bicycle accident in which her head was struck, and noise exposure during service while working in a sewing room, as causes of the acoustic neuroma which was discovered in September 1985. A report of medical history obtained at the time of the veteran's enlistment in the Navy related that she suffered from motion sickness. Service medical records of treatment in March 1974 show that while riding a 10-speed bicycle, the veteran hit a chuck hole or bump on the street and "spilled" her bike. She had right ear abrasion and bleeding. She complained of pain in the right shoulder, left hand, and low back. She had pain with range of motion of her right shoulder. The left hand was dirty where she fell on it to hold her balance. She also complained of headache and vertigo with standing. X-rays of the right shoulder and left hand were taken and were negative. Diagnoses included contusion and abrasion of the right shoulder, lumbar muscle spasms, and abrasion of the right ear. Her ear was cleaned and she was prescribed medication. Records of treatment, hospitalization and surgery at the Naval Hospital in Oakland, California from September 1985 to November 1985 show that the veteran was discovered to have an acoustic neuroma after a sudden onset of left ear hearing loss. The acoustic neuroma was removed during a suboccipital craniectomy in October 1985. Postoperatively she had facial palsy, no hearing in the left ear, and she had only partial ability to close her left eye. In a letter dated in January 1994, C. G. Fitch, M.D., practicing in internal medicine, wrote that the veteran sustained a head injury in 1974 while on active duty in the United States Navy. He wrote that an acoustic neuroma was discovered in 1985 which had probably been present for a good number of years before being discovered. He asserted that trauma has been mentioned as a possible etiology for acoustic neuroma, raising the possibility that the veteran's acoustic neuroma may be service connected. In a June 1995 review of the veteran's case, a VA physician noted the veteran's history of a bicycle accident in 1974 with blunt head trauma to the head and face, and right ear abrasion. He noted that she was diagnosed and treated for left acoustic neuroma in 1985. He reviewed numerous references, and noted that etiologic relationships existed between acoustic neuroma and noise trauma, and between acoustic neuroma and genetic factors. He asserted that no reference reported any etiologic relationship between acoustic neuroma and blunt head trauma. He quoted a passage from one treatise that "[t]here was little difference between cases and controls in their experience of head injuries during the three decades before AN diagnosis." It is documented in the service medical records that the veteran sustained an injury to her head when she fell off her bicycle during service. Furthermore, she presently has many residuals of an acoustic neuroma which was surgically removed in 1985. Thus, the first and second elements of a well- grounded claim have been satisfied. In support of her claim, the veteran has submitted numerous medical treatises describing acoustic neurome, and its etiology. These reports are very general in nature and do not discuss the specifics of the appellant's claim. She has also submitted a January 1994 statement from Dr. Fitch containing the opinion that "trauma has been mentioned as a possible etiology for acoustic neuroma, raising the possibility that the veteran's acoustic neuroma may be service connected." Dr. Fitch's statement regarding trauma and acoustic neuroma appears to be a general medical statement and does not address the specifics of the veteran's case. In addition, his use of the term "may" suggests some tentativeness in his opinion. A medical opinion expressed in terms of "may," also implies "may not" and is too speculative to establish a plausible claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); accord Bostain v. West, 11 Vet. App. 124, 127-28 (1998). After reviewing the claims folder, the Board finds that the veteran's claim for service connection for residuals of acoustic neuroma is not well grounded because there is no competent medical evidence of a nexus between the veteran's present residuals and her period of active duty service. Absent evidence of a relationship, the claim is not well grounded. Epps, 126 F.3d at 1468. The veteran maintains that her present disabilities are related to inservice incidents and noise exposure; she is competent to relate and describe symptoms, but is not competent to offer an opinion on matters that require medical knowledge, such as a determination of etiology. Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. Under these circumstances, the Board finds that the veteran has not submitted a well grounded claim for service connection for residuals of acoustic neuroma. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Epps, 126 F.3d at 1468. Therefore, the duty to assist is not triggered and VA has no obligation to further develop the veteran's claim. Epps, 126 F.3d at 1469; Morton, 12 Vet. App. at 486; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). The Board recognizes that this appeal is being disposed of in a manner that differs from that used by the RO. The RO denied the veteran's claim on the merits, while the Board has concluded that the claim is not well grounded. However, the Court has held that "when an RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded analysis." Meyer v. Brown, 9 Vet. App. 425, 432 (1996). If the veteran wishes to complete her application for service connection for residuals of acoustic neuroma, she should submit competent medical evidence that relates the disorder in some way to service. 38 U.S.C.A. § 5103(a); Robinette, 8 Vet. App. at 77-80. Skin Rash A service medical record of treatment in August 1975 shows that the veteran was treated for a skin rash. The treating physician's impression was ampicillin rash versus viral rash. The ampicillin was discontinued and she was prescribed Benadryl. The veteran's March 1976 service discharge examination was negative for history or clinical evaluation of a skin rash. During a June 1993 VA examination, the veteran complained of a skin rash. She reported that she developed red bumps all over her body in 1973, and reported recent similar episodes about once every six months, the most recent being in July or August 1992. Upon physical examination, there was no rash evident on her body, though there were some mild acne changes. The only diagnosis rendered pertaining to the veteran's skin was mild acne. During a June 1995 RO hearing, the veteran described a rash which she would get every once in a while. She said it was the same rash every time. She said when she would seek medical treatment, the rash would be gone by the time she saw the doctor. She described strong itching. She said the rash covered her whole body. She contended it was related to her allergies. During her July 1999 Board hearing, the veteran described a skin rash which comes and goes. She indicated that the skin rash episodes began during service. She said the rashes came and went fairly quickly, and that she had not sought medical treatment for the rash since service. She said she thought the rash usually occurred on the warmer parts of her body, such as under her arms. She also described bumps on her face which occurred on a weekly basis. In the present case, there is no medical evidence of a current rash and no medical nexus evidence linking the claimed recurrent rashes to a disease or injury incurred or aggravated during active service. Accordingly, the claim for service connection for a skin disability must be denied as not well grounded. Caluza; Epps. ORDER Service connection for a skin disorder is denied. The claim for service connection for residuals of an acoustic neuroma, including facial disfigurement, facial palsy, vision problems, loss of memory, problems with dizziness and movement, headaches and head pain, hearing loss, and tinnitus is denied. REMAND 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). The Board finds that there is no sufficient medical evidence of record for purposes of rating the veteran's allergic rhinitis. There is no sufficiently explicit discussion of the presence or absence of those conditions reflected in the rating criteria. Pursuant to 38 C.F.R. § 19.9, the Board finds that further development of the evidence is necessary and, therefore, remands the matter to the RO for the following action: 1. The RO should ask the veteran to provide the names, addresses, and approximate dates with respect to any record of treatment of all health care providers, VA or private, who have evaluated or treated her for allergic rhinitis from May 1993 forward. After obtaining any required releases from the veteran, the RO should request copies of all indicated records which have not been previously obtained or determined to be unavailable. 2. The RO should schedule the veteran for a VA examination in order to determine the current manifestations of her service-connected allergic rhinitis. The claims folder and a separate copy of this remand must be made available to the examiner for review prior to the examination. All indicated tests and studies should be performed. The examiner should set forth all objective findings regarding this disability. The examiner should obtain a history and note the presence or absence of each of the following: atrophy of the intranasal structure; secretion; crusting and ozena; anosmia; polyps; and whether there is greater than 50 percent obstruction of the nasal passage on both sides, or complete obstruction on one side. The examiner should also address the effect of the veteran's allergic rhinitis on her ability to perform routine functions and her ability to work. 4. Prior to the examinations, the RO must inform the veteran, in writing, of all consequences of her failure to report for the examination in order that she may make an informed decision regarding her participation in the examination. 5. After the above examination is conducted, the RO should review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the reports of examination. If a report does not include sufficient data or an adequate response to the specific questions posed, the report must be returned to the examiner for corrective action. 38 C.F.R. § 4.2. 6. Then, the RO should undertake any other indicated development, and readjudicate the issues on appeal. The claim for service connection for allergic rhinitis should be considered under both the former and the revised rating criteria for disability of the respiratory system. If the benefits sought on appeal are denied, then the appellant and her representative should be provided with a supplemental statement of the case which reflects RO consideration of all additional evidence and an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The purposes of this REMAND are to obtain clarifying medical information and to ensure that the veteran is afforded due process of law. 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 case 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. RENÉE M. PELLETIER Member, Board of Veterans' Appeals