BVA9501353 DOCKET NO. 93-09 541 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for arthritis of the shoulders, knees, and cervical and lumbar spine. 2. Entitlement to service connection for a disorder manifested by poor circulation including peripheral vascular disease of the legs and feet. 3. Entitlement to service connection for an acquired psychiatric disorder. 4. Entitlement to an increased (compensable) evaluation for scars above the left eyebrow. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from December 1939 to September 1945, during which time he was a prisoner of war (POW) of the German government from September 6, 1943 to May 2, 1945. This appeal is from a rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, in December 1991. In his VA Form 9, dated in January 1993, the veteran's statements could be construed as a claim of entitlement to compensation benefits based upon the provisions of 38 U.S.C.A. § 1151. In April 1993, the veteran's representative asked that that issue be developed without delaying certification of the veteran's other appellate issues to the Board of Veterans' Appeals (the Board). The attention of the RO is called to the 38 U.S.C.A. § 1151 issue for consideration following the decision on the current appeal. CONTENTIONS OF APPELLANT ON APPEAL In substance, the veteran argues that the experiences as a POW caused his current arthritis, circulatory problems and nervousness, that the applicable presumptive provisions should result in his receipt of additional benefits, and that his facial scarring has been with him for years and should be considered more disabling than reflected in the current evaluation. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran's claim for service connection for arthritis of the shoulders, knees, and cervical and lumbar spine, for a disorder manifested by poor circulation including peripheral vascular disease of the legs and feet, and for an acquired psychiatric disorder, is not well-grounded; and that the preponderance of the evidence is against his claim for an increased (compensable) rating for the scars above his left eyebrow. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the issues on appeal is of record. 2. The veteran was a POW of the German government during WW II and is presumed to have had experienced trauma; service medical records do not reflect the presence of arthritis, circulatory problems or psychiatric disease. 3. Recent VA and private examinations show cervical and thoracic arthritis; however, there is no evidence or medical opinion that the veteran has arthritis of traumatic origin in any joint, or that he had degenerative arthritis in or proximate to service. 4. There is no evidence or medical opinion that the veteran has a circulatory disorder including peripheral vascular disease involving the lower extremities or an acquired psychiatric disorder that can be related to service. 5. The veteran's healed, above the left eyebrow scars, are no more than slightly disfiguring, and do not cause marked interference with employment or require frequent periods of hospitalization. CONCLUSION OF LAW 1. The veteran's claim for service connection for arthritis of the shoulders, knees, and cervical and lumbar spine, a disorder manifested by poor circulation of the legs and feet including peripheral vascular disease, and an acquired psychiatric disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. An increased (compensable) evaluation for healed scars above the left eyebrow, is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1), Part 4, § 4.7, Code 7800 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In Boeck v. Brown, 6 Vet.App. 14 (1993), the United States Court of Veterans Appeals (the Court) held that A(n appellant) claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107, and see Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (l992). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The appellant is seeking service connection for arthritis of the shoulders, knees, and cervical and lumbar spine, a disorder manifested by poor circulation including peripheral vascular disease of the legs and feet, and for an acquired psychiatric disorder. Service Connection Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 3l, l946, and arthritis becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. Additional provisions are provided for a veteran who was a POW for not less than 30 days, and a psychiatric disorder (to include psychosis, anxiety state and dysthymic disorder or depressive neurosis), post-traumatic osteoarthritis, or peripheral neuropathy, become manifest to a degree of 10 percent at any time after discharge from service, service connection may be granted provided the rebuttable presumptive provisions are also satisfied. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Board appreciates that the veteran was a POW from September 1943 to May 1945, and as such, is presumed to have experienced deprivation and trauma. The regulations take into special consideration specific disabilities experienced by ex-POWs, and to the extent identified in the regulations above, special provisions are in effect to grant service connection for various disabilities absent service medical documentation or post-service evidence of chronicity. However, in this case, there is no evidence in the file, or medical opinion, to show that the veteran has traumatic arthritis of any joint. Both VA and private examinations in the 1990's have shown cervical and thoracic arthritic changes, but there is no evidence that these changes are of traumatic origin. There is no evidence or medical opinion to show that cervical or thoracic degenerative arthritis was present in service or to a compensable degree within the year following his separation from service. Otherwise, while the veteran's history is consistent with the joint pain and limitation of motion associated with arthritis, and on that basis, he has apparently been told that he has arthritis in the lumbar spine and other joints (and on occasion, a diagnosis of arthritis has been entered on the basis of his history), recent X-rays of his shoulders and knees, were negative. The veteran complains that his circulation in the lower extremities (particularly his right leg) is poor, and on recent examination, his feet were slightly cool. The diagnoses on VA examination in September 1991 included peripheral vascular disease. He argues that special provisions permit this symptom to be service-connected. However, while there are special provisions for service connecting peripheral neuropathy, there is nothing to indicate that the veteran exhibits that at this time. There is no special provision relating to presumptive service connection for the veteran's peripheral vascular disease which was first manifested many years following service discharge. There is no evidence or medical opinion of record to the effect that he has a circulatory disorder of the lower extremities which is of service origin. Finally, although recent VA examinations have shown that the veteran demonstrates some anxiety and is sometimes depressed, mostly normal findings were noted on psychiatric interview in October 1991. It was concluded that his symptoms did not meet the criteria for diagnosis of any acquired psychiatric disorder to include post-traumatic stress disorder, depression, dysthymia or generalized anxiety disorder. The Board notes that other VA evaluations and private records (including subsequent private clinical annotations relating to suspected stenosis in 1992) do not show evidence to the contrary. While the veteran has argued that he has various claimed disabilities and that they are related to service, the veteran is not medically trained and is not qualified to render such a medical opinion, and this opinion is not otherwise borne out by the evidence of record. See Espiritu v. Derwinski, 2 Vet.App. 492 (1993). In reaching its decision, the Board has taken into consideration the nature of the veteran's service and recent extensive POW protocols and clinical evaluations by both VA and private physicians. However, absent diagnoses as identified above in relationship to POW presumptive disorders, or other evidence or medical opinion that he has arthritic disabilities which may be presumed to be of service origin, the Board finds that the veteran's claim is not well-grounded, and therefore, must be dismissed. 38 U.S.C.A §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. If the appellant were to submit medical evidence (such as an opinion) showing these disabilities or that shows a circulatory disorder of the legs related or proximate to service, his claim in this regard would be well grounded. Robinette v. Brown, No. 93-985 (U.S. Vet. App. Oct. 21, 1994). Increased Evaluation In assessing the veteran's service-connected disabilities, in general, disability evaluations are determined by the application of a schedule of ratings 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. 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. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Board has considered all the facets of the disorder including alternative provisions which may be applicable pursuant to Schafrath v. Derwinski, 1 Vet.App. 589 (1991), in this case. Regulations relating to disfiguring scars of the head, face and neck provide for a zero percent evaluation when slight; a 10 percent rating is assignable when moderate, disfiguring; a 30 percent rating is assignable when severe, especially if producing marked and unsightly deformity of the eyelids, lips or auricles. Diagnostic Code 7800. Scars which are superficial, tender and painful on objective demonstration, or a scar which is superficial, poorly nourished and with repeated ulcerations, may be rated as 10 percent disabling under Diagnostic Codes 7804 or 7805. In every instance where the schedule does not provide for a zero percent rating, a zero percent evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give history or past medical observations precedence over current findings. Francisco v. Brown, No. 93-76 (U.S. Vet.App. Sept. 27, 1994). The veteran's service-connected scars are above his left eyebrow. He has reported acquiring them when his plane was shot down and he was taken captive; they are described on recent evaluation as the result of gunshot wounds. Nonetheless, whatever their source, they are already service-connected and evaluation must be based on current clinical findings. The scars are well healed, and are described on recent VA examination as mildly disfiguring. Other than the veteran's expressed opinion that he has carried the scars with him for more than 50 years and that that should certainly be worth something, there is no other evidence to show that the scars can be considered to be any more than slightly disfiguring in degree, warranting an evaluation of greater than zero percent. His symptoms do not more nearly approximate the criteria required for a higher evaluation. His scars do not cause marked interference with employment or require frequent periods of hospitalization as required for an extraschedular compensable evaluation. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.31, Code 7800. ORDER The claim for service connection for arthritis of the shoulders, knees, and cervical and lumbar spine, for a disorder manifested by poor circulation including peripheral vascular disease of the legs and feet, and for an acquired psychiatric disorder, is dismissed. The claim for an increased (compensable) evaluation for healed left eyebrow scars is denied. THOMAS J. DANNAHER Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.