Citation Nr: 0002428 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 98-18 761 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for multiple seborrhea keratoses due to exposure to herbicides. 2. Entitlement to an evaluation in excess of 20 percent for osteoarthritis of multiple joints. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. K. Enferadi, Associate Counsel INTRODUCTION The veteran had active service from October 1957 to September 1966; from February 1970 to August 1976; and from January 1980 to September 1987. This matter arises before the Board of Veterans' Appeals (Board) from an April 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for osteoarthritis of multiple joints and assigned a 20 percent evaluation, and denied entitlement to service connection for seborrhea keratoses due to exposure to herbicides. FINDINGS OF FACT 1. Medical evidence of a nexus between current multiple seborrhea keratoses and the veteran's period of service has not been submitted. 2. The veteran's osteoarthritis of multiple joints is manifested by X-ray evidence of arthritis, tenderness in the shoulders, a weakened grip in the right hand, flare-ups in the right elbow, and pain in the hips bilaterally. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for a chronic skin disorder due to herbicide exposure is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The schedular criteria for an evaluation in excess of 20 percent for osteoarthritis of multiple joints have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. 4.71, Diagnostic Code 5003 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background A review of the record reveals that the RO granted service connection for osteoarthritis of multiple joints in a rating decision dated in April 1998 and assigned a 20 percent evaluation effective from June 20, 1997. At that time, the RO considered the veteran's service medical records. The veteran's records include an enlistment examination dated in October 1957 that disclosed jaundice from infancy; otherwise, the report was silent for any pertinent findings. In a medical record dated in December 1957, it is noted that the veteran had rubella with symptoms of a rash. Also, a reenlistment examination dated in September 1960 did not contain any relevant information. A discharge examination dated in August 1966 was negative for any complaints or findings related to the veteran's current claims. Also, a reenlistment examination dated in February 1970 was devoid of any related findings. In several medical entries dated in February, March, and April 1974, the veteran was treated for a rash on the right hand, inner thighs, and groin area. It is noted that the rash improved. Also noted is that the veteran had a past history of a rash while in Vietnam that was treated with an antibiotic and antifungal ointment. Arthritis was diagnosed in January 1976 as noted in a medical record at that time. In a report from a discharge examination dated in July 1976, the veteran noted swollen and painful joints and a history of arthritis. Enlistment examinations conducted in December 1979 and January 1980 are silent for pertinent findings, information, or any complaints. A September 1980 entry revealed that the veteran was injured in the right knee while playing football. Annual examinations dated in June 1985 and July 1986 are also negative for relevant findings. An entry dated in May 1987 from the Dermatology Clinic reveals an assessment of seborrhea keratosis with scaling in the right hand and feet that had existed since his service in Vietnam in 1971. The examiner indicated that the veteran responded only to Griseofulvin in the past. Also noted is that the veteran had no chronic problems with exposure to Agent Orange. Also diagnosed was tinea pedis and manum. A retirement examination dated in September 1987 revealed a history of arthritis of unknown type in the hands, knees, and hips and low back pains due to an injury to the coccyx in April 1987. In a statement from the veteran's representative dated in June 1997, the representative indicated that the veteran was treated in British, German, and Dutch facilities at NATO facilities and at a U. S. Army hospital. At the Army hospital in Germany, the veteran reported that he was treated for a skin lesions on the back, chest, and arms due to exposure to Agent Orange while in Vietnam. The veteran claimed that he was treated in November 1987. Post-service treatment includes several VA examinations dated in March 1998. In an examination of the joints, the veteran reported his inservice history of osteoarthritis due to such tasks as jumping out of helicopters, lifting heavy loads, and climbing, all of which affected him in the hips, shoulders, hands, and elbows. On examination, the examiner noted tenderness bilaterally in the rotator cuff area. The examiner noted that the veteran could extend, flex, and abduct both shoulders fully with minimal pain at the upper extreme. External rotation bilaterally caused pain in the shoulders. The veteran reported that he is left-handed, but is somewhat ambidextrous. His grip was noted as weaker in the right hand with a grip of 50 in the right and 98 in the left. The veteran had full range of motion with his fingers. The right elbow was tender and the veteran reported an acute flare-up of symptoms in the right elbow one year earlier, which had begun to subside at the time of the examination. Further, the examiner reported that the veteran's hips were somewhat tender bilaterally, but that he could move well and had full range of motion. The diagnosis rendered was chronic arthritis of multiple joints. During an examination of the spine, the veteran reported a history of injury in service when he slipped and fell on his back. On examination, the examiner noted that the veteran walked without a limp, but had slight tenderness around the coccyx and lower sacral region. The veteran could bend forward well to about 40 degrees without pain and could hyperextend to about 20 degrees with minimal discomfort. The veteran's main discomfort was on right flexion to about 20 degrees; left flexion was to 30 degrees without pain. Further, the veteran was able to rotate quite well in both directions and straight leg raising to the right was 65 degrees and 75 degrees to the left with pain in the low back and hips. Reflexes were present bilaterally and the veteran had minimal sensory deficit on the right thigh laterally. The veteran could stand on his toes and heels and could squat with only minor difficulty due to knee pain. The diagnosis rendered was continuing chronic low back pain. An x-ray revealed mildly straightened lordosis with slight scoliosis; multilevel mild end plate concavity with overall maintenance of vertebral height and alignment; and mild productive osteoarthritic changes and apparent slight L2-3 intervertebral narrowing. An x-ray of the elbow also conducted in March 1998 revealed no frank post-traumatic deformity and small postero-inferior olecranon spur. An x-ray of the right hip disclosed an impression of no frank post-traumatic deformity; mild acetabular osteoarthritic changes, more notably on the right side; and right joint space mildly narrowed with respect to the left. As to the left hip, the radiologist noted the same findings. With respect to x-ray studies of the shoulders, an examination of the right shoulder indicated no frank post- traumatic deformity or significant appearing osteoarthritic changes. The same findings were indicated for the left shoulder. In the report from VA skin examination also conducted in March 1998, the examiner recited the veteran's reported history of exposure to Agent Orange while serving in Vietnam. The veteran had fungus infections that affected the hands, fingernails, and feet for which several courses of Griseofulvin were administered for control of onychomycosis. The majority of the infections completely cleared. The veteran further reported that he had experienced an onset of multiple dark skin nodules on his chest, back, and calf. On examination, the examiner rendered a diagnosis of multiple seborrhea keratoses. Analysis The issues for determination in this case involve entitlement to service connection for seborrhea keratoses due to exposure to herbicides, and entitlement to an evaluation greater than 20 percent for osteoarthritis of multiple joints. These issues will be addressed separately below. Service connection Initially, the Board notes that in well grounded cases, service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service in the Armed Forces. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). Service connection may also be granted for certain chronic diseases if manifest to a degree of 10 percent or more within one year from the date of separation from such service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Furthermore, a disease listed in 38 C.F.R. § 3.309 associated with exposure to certain herbicide agents during a period of service in Vietnam, will be considered to have been incurred in service under the circumstances outlined in the regulations, even though there is no evidence of such disease during the veteran's period of active service. 38 C.F.R. § 3.307(a)(6)(i) (1999). Additionally, 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) (1999). Moreover, a veteran may establish service connection for a disease or disability resulting from herbicide exposure with proof of actual direct causation. See Combee v. Brown, 34 F.3d 1039 (1994). In the case of a disability which is not presumed under law to have been caused by exposure to herbicides, however, proof of actual exposure to herbicides during service in Vietnam is also required. McCartt v. West, 12 Vet. App. 164 (1999). As in any case, a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a); Anderson v. Brown, 9 Vet. App. 542, 545 (1996). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The test is an objective one, which explores the likelihood of prevailing on the claim under the applicable law and regulations. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Thus, although a claim need not be conclusive to be well grounded, it must be accompanied by supporting evidence. 38 U.S.C.A. § 5107(a); Tirpak, supra. The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). For a claim to be well grounded, there must be competent evidence of 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.) See Anderson, supra; see also Epps v. Brown, 9 Vet. App. 341, 343-44 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" is required. See Johnson v. Brown, 8 Vet. App. 423, 426 (1995); Grottveit, 5 Vet. App. at 93. A lay person is not competent to make a medical diagnosis or to relate a medical disorder to an in-service injury or treatment. See Espiritu v. Derwinski, 2 Vet. App. 494, 494 (1992). In this regard, the Board notes that the veteran has failed to establish a well grounded claim. Overall, the record does not contain competent evidence demonstrating a medical nexus between current skin disability and an inservice incident. Essentially, in spite of the veteran's allegations that he was exposed to herbicides while in service, and to Agent Orange in particular, his service medical records are silent as to any herbicide or pesticide exposure during the veteran's period of active service. The Board notes that VA regulations provide that an herbicide agent is a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i) (1999). Although the veteran has demonstrated that he served during the Vietnam era in the Republic of Vietnam, as evidenced by the decorations and medals he received during service as indicated on his Form DD214, he has not provided any evidence whatsoever of exposure to any herbicide agent during his period of service. Although the record includes evidence of episodic skin rashes, specifically as those noted on the right hand, inner thighs, and groin area in clinical entries dated in February, March, and April 1974, the veteran was treated and the rashes apparently improved. Additionally, noted at that time in 1974 was the veteran's history of prior rashes that were treated effectively with an antibiotic and antifungal ointment. Moreover, in a dermatology record dated in May 1987, the examiner noted a diagnosis of seborrhea keratosis with symptoms in the hands and feet. Further noted is that the veteran had not had problems due to exposure to Agent Orange. Moreover, reports from all separation examinations of record as noted above are silent for any pertinent findings or notations. Thus, in this respect, the veteran has failed to establish a well grounded claim for disability resulting from herbicide exposure while in service. See Caluza at 506. Furthermore, the veteran has not presented any evidence post- service that tends to suggest a relationship between any current seborrhea keratoses and his period of service. Specifically, although the veteran's representative indicated in a statement dated in June 1997 that the veteran had been treated in Germany for skin lesions in November 1987 that had resulted from the exposure to Agent Orange while in Vietnam, the record does not support such assertions. Most significantly, there are no medical records to support the veteran's allegations of treatment in Germany for a skin disorder secondary to exposure to Agent Orange. Additionally, post-service records for treatment related to any skin disorder appear in March 1998, many years after the veteran's discharge from service. Thus, in this regard as well, the veteran has failed to demonstrate any link between post-service skin problems and his period of active service. Overall, there is no definitive medical evidence so as to warrant a well grounded claim in this case. Additionally, a diagnosis based solely on the veteran's unsubstantiated history cannot form the basis of a valid claim. LeShore v. Brown, 8 Vet. App. 406 (1995). Thus, in this respect as well, the veteran in this case has failed to establish a well grounded claim. Moreover, during the most recent dermatology consultation in March 1998, the examiner rendered a diagnosis of seborrhea keratoses, a disorder not encompassed within the regulations related to presumptive service connection. 38 C.F.R. § 3.307(a)(6)(i). Essentially, no evidence was presented otherwise to substantiate that the veteran's skin disorder relates directly to his period of service. Thus, in light of the above, the veteran has failed to establish a well grounded claim. The Board acknowledges the veteran's statements that he was exposed to herbicides during his tour of duty in Vietnam evidenced by the fungus infections and his contentions that the lesions he has today are a result of such exposure. Further, the Board is aware that the veteran reported during his 1998 VA examination that he had been exposed to Agent Orange. However, without evidence to the contrary, this veteran is not competent to relate any disorder or disease to an inservice event or occurrence. See Espiritu, 2 Vet. App. 494. In a case such as this one that requires competent medical opinions or clinical evidence to determine medical etiology or medical diagnoses, the veteran's lay opinion will not suffice. See Grottveit v. Brown at 93. Thus, in this regard, the veteran has again failed to establish a well grounded claim. In this case, in view of the veteran's failure to submit competent evidence that satisfies the aforementioned requirements, the Board must conclude that the claim is not well grounded and, therefore, must be denied. Edenfield v. Brown, 8 Vet. App. 384, 390 (1995). Since this claim is not well grounded, the VA does not have a statutory duty to assist the veteran in the development of the case. 38 U.S.C.A. § 5107(a). However, if upon examination of the record, the Board determines that information exists that possibly could render the claim plausible, the VA may have a duty to inform the claimant of necessary evidence to complete the application. Robinette v. Brown, 8 Vet. App. 69, 80 (1995); 38 U.S.C.A. § 5103(a). In this case, the Board found no such information. Despite the fact that the Board reached a decision on the veteran's claim of entitlement to service connection for seborrhea keratoses on different grounds than those the RO considered, that is, whether the veteran's appeal is well grounded rather than whether he is entitled to prevail on the merits, the veteran has in no way been prejudiced by the Board's approach. Assuming that the veteran's claim was well grounded, the RO extended more consideration to him than was warranted under the factual circumstances. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). Increased rating At the outset, the Board notes that a claim placed in appellate status by disagreement with the initial rating award and not yet ultimately resolved is an original claim as opposed to a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). Such is the case with this veteran's claim for an evaluation in excess of 20 percent for osteoarthritis of multiple joints, in that he disagreed with the rating decision wherein the RO granted service connection and assigned the 20 percent evaluation. See rating decision dated in April 1998. Thus, the record in its entirety will be reviewed; that is, no specific emphasis will be placed on the most recent clinical findings over previous objective findings of record. Cf. Francisco v. Brown (where the Court held that although the regulations require a review of past medical history of a service-connected disability, they do not give past medical reports precedence over current examinations. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Disability evaluations are determined, as far as practicable, upon the average impairment of earning capacity attributable to specific injuries or combination of injuries coincident with military service. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Each disability must be viewed in relation to its history with an emphasis placed on the limitation of activity imposed by that disability. 38 C.F.R. § 4.1. The degrees of disability contemplated in the evaluative rating process are considered adequate to compensate for loss of working time due to exacerbation or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The veteran's osteoarthritis of multiple joints currently is rating under Diagnostic Code 5003, which provides for a 10 percent evaluation in those circumstances where there is x- ray evidence of degenerative arthritis, and the limitation of motion of the particular joint or group of joints at issue is noncompensable under the appropriate diagnostic code for that joint. 38 C.F.R. § 4.71(a), Diagnostic Code 5003 (1999). An evaluation of 20 percent is warranted where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. Id. Such is the case for this veteran as substantiated by the March 1998 x-ray findings of osteoarthritis of multiple joints. Nonetheless, in light of the fact that this veteran's arthritic disability affects multiple joints, the Board has also considered the potential applicability of pertinent limitation of motion diagnostic codes so as to assess whether the veteran is entitled to an evaluation in excess of 20 percent in this regard. Although VA schedule of ratings for the musculoskeletal system provide for ratings greater than 20 percent within the limitation of motion diagnostic codes related to the shoulders, hands, elbow, hips, and back, with the exception of the lumbosacral spine, there are no findings of limitation of motion of any of the affected joints. Specifically, as to the shoulders, the examiner remarked during the March 1998 examination that the veteran had full range of motion with some pain. Furthermore, the veteran demonstrated full range of motion with his fingers and was able to make a fist well. Also, an examination of the right elbow revealed some tenderness; however, the examiner noted full range of motion. Additionally, in spite of some pain and tenderness in the hips bilaterally, the veteran was able to move the hips quite well and otherwise had full range of motion. In view of those clinical findings, the diagnostic codes that pertain to limitation of motion of the shoulders, hand and fingers, elbow, and hips are not applicable in this case. See 38 C.F.R. § 4.71, Diagnostic Codes 5201 (1999) (shoulder and arm); 5206, 5207 (1999) (elbow and forearm); 5215 (1999) (wrist); 5251, 5252 (1999) (hip and thigh). Therefore, in light of the examiner's findings as noted above, the veteran's current 20 percent evaluation for osteoarthritis of these joints pursuant to Diagnostic Code 5003 is the maximum available. 38 C.F.R. § 4.71, Diagnostic Code 5003. Overall, there are no clinical data to support an evaluation in excess of 20 percent based on limitation of motion of the shoulders, elbow, hand and fingers, and the bilateral hips. With respect to the above-noted medical findings of limitation of motion in the lumbosacral spine as indicated during the March 1998 VA examination, the examiner reported slight tenderness without evidence of scoliosis and noted that the veteran was able to bend forward quite well to 40 degrees with minimal pain. Further, as indicated above, the veteran was able to extend to about 20 degrees with little discomfort. Although there was evidence of increased pain and discomfort on right flexion, left flexion was accomplished to 30 degrees without pain. Moreover, the examiner noted that the veteran could rotate well in both directions. Under Diagnostic Code 5292 that pertains to limitation of motion of the lumbosacral spine, where there is moderate limitation, the back disability merits a 20 percent evaluation. See 38 C.F.R. § 4.71, Diagnostic Code 5292 (1999). A greater evaluation of 40 percent is only assigned where the limitation is severe in nature. Id. In light of the clinical data of record that support no more than moderate limitation of motion of the lumbosacral spine, an evaluation in excess of 20 percent is not warranted in this veteran's case for his back disability. Id. Thus, the current 20 percent rating pursuant to Diagnostic Code 5003 is the most appropriate one. Overall, the medical evidence of record supports that the rating criteria for a 20 percent evaluation of osteoarthritis of multiple joints most nearly approximates this veteran's arthritic disability. The Board further acknowledges that under 38 C.F.R. § 4.10 (1999), in cases of functional impairment, evaluations are to be based upon the lack of usefulness, and medical examiners must furnish a full description of the effects of the disability upon the veteran's ordinary activity; this requirement is in addition to the etiological, anatomical, pathological, and prognostic data required for ordinary medical classification. Further, in cases involving musculoskeletal disability, the elements to be considered include the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. The examinations upon which the ratings are based must adequately describe the anatomical damage and functional loss with respect to these elements. Id. The functional loss may be due to pathology such as absence of bone or muscle, deformity, or pain, supported by adequate pathological studies. Id. Weakness of the affected area is also for consideration. Id. In consideration of the above provisions, the Board notes that in the medical reports from the extensive March 1998 VA examinations, the examiner explored the veteran's ability to function overall in light of his arthritis and accompanying symptomatology. In general, it appears from the record that the veteran is able to walk without difficulty and move quite well with minimal pain. Essentially, flare-ups tend to subside and pathology associated with the veteran's multiple joint disability is appreciative of no more than moderate impairment and do not affect in an appreciable manner the veteran's ability to function. Therefore, upon review and consideration of all potential applicable regulations and laws relevant to the veteran's assertions and issues raised in the record, the foregoing reasons and bases support the conclusion that the veteran's current evaluation of 20 percent for osteoarthritis of multiple joints is the one that most nearly encompasses symptomatology of the veteran's arthritic disability. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). ORDER Entitlement to service connection for seborrhea keratoses due to exposure to herbicides is denied. Entitlement to an evaluation in excess of 20 percent for osteoarthritis of multiple joints is denied. V. L. Jordan Member, Board of Veterans' Appeals