BVA9500519 DOCKET NO. 93-07 581 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for residuals of dengue fever. 2. Entitlement to an increased (compensable) evaluation for hepatitis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Wm. Thompson, Counsel INTRODUCTION The veteran had active service from February 1943 to April 1946. He also had periods of active duty for training associated with the Army National Guard and Army Reserves. This appeal arises from a January 1992 Department of Veterans Affairs (VA) Reno, Nevada Regional Office (RO) rating action that included a denial of service connection for dengue fever, and a grant of service connection for hepatitis with assignment of a noncompensable rating. The veteran's representative, in a written statement dated in July 1993, raised the issue of an increased rating for the residuals of a through and through gun shot wound to the right arm. The RO's attention is directed to this claim for action deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred in not finding the evidence of record supports a grant of service connection for dengue fever, and a compensable evaluation for the residuals of hepatitis. He points out that the service medical records show treatment for dengue fever. Regarding the service- connected hepatitis, medications for treatment of the disorder were prescribed in service, therefore, there is no doubt that he has some residual liver damage. The veteran and his representative point out that during service the veteran was treated for dengue fever, acute infectious hepatitis and Strongyloides stercoralis, and that 2+ hepatomegaly was noted in service. It is contended that the combination of acute infectious hepatitis and the therapy for Strongyloides stercoralis affected the veteran's liver, and that the his liver is currently disposed to low tolerance to toxic or allergenic agents. It is asserted that the veteran's recent reaction to medication for a skin disorder may be an indication of that intolerance. The veteran suspects that at the very least he has latent residuals of liver damage. Consideration of 38 C.F.R. §§ 4.7 and 4.10 has been requested. 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 claim for entitlement to service connection for dengue fever is not well-grounded, and that the preponderance of the evidence does not support entitlement to a compensable evaluation for residuals of hepatitis. FINDINGS OF FACT 1. The dengue fever in service was acute and transitory, resolving without residual impairment. 2. No residual of dengue fever has been medically demonstrated post-service. 3. The infectious hepatitis in service was treated conservatively and resolved. 4. There is no current objective medical evidence of demonstrable liver damage with mild gastrointestinal disturbance; the disorder is healed, and non symptomatic. 5. The service-connected hepatitis is not shown to present an unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization. CONCLUSIONS OF LAW 1. The appellant's claim for service connection for residuals of dengue fever is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. A compensable evaluation for hepatitis is not warranted. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7345 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Dengue Fever In Boeck v. Brown, 6 Vet.App. 14 (1993), the United States Court of Veterans Appeals (the Court) held that A veteran 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 Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate the claim. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). 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). Although the claim need not be conclusive, it must be accompanied by supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible. See Tirpak. In this case, the appellant has failed to submit medical evidence establishing the existence of chronic dengue fever in service, or any or medical evidence of residuals of dengue fever post-service. The veteran was treated for dengue fever in January 1945. There is no medical evidence of residuals or sequelae, either in service or post-service. A recent VA medical examination was did not note any residuals. The mere incurrence of a disease or injury in service, in and of itself, does not provide a basis for service connection. "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). In this case there is no objective medical evidence showing the existence of a current disability etiologically related to the dengue fever in 1945. Having not made evidentiary assertions establishing a plausible basis entitling him to service-connected disability compensation under 38 U.S.C.A. § 1141 (West 1991), he has failed to submit a well-grounded claim under 38 U.S.C.A. § 5107(a) (West 1991). In light of Grivois v. Brown, 6 Vet.App. 136 (1994), purported adjudication of claims which are not well- grounded are a nullity in contemplation of law. Hepatitis Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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 regulation do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55 (1994). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. Whether the upper or lower extremities, the back or abdominal wall, the eyes or ears, or the cardiovascular, digestive, or other system, or psyche are affected, evaluations are based upon lack of usefulness, of these parts or systems, especially in self-support. This imposes upon the medical examiner the responsibility of furnishing, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of disability upon the person's ordinary activity. In this connection, it will be remembered that a person may be too disabled to engage in employment although he or she is up and about and fairly comfortable at home or upon limited activity. 39 C.F.R. § 4.10 (1993). Infectious hepatitis, with marked liver damage manifest by liver function test and marked gastrointestinal symptoms, or with episodes of several weeks duration aggregating three or more a year and accompanied by disabling symptoms requiring rest therapy warrants a 100 percent rating. With moderate liver damage and disabling recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression, a 60 percent rating is assigned. Infectious hepatitis, manifested by minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency but necessitating dietary restriction or other therapeutic measures warrants a 30 percent rating. Demonstrable liver damage with mild gastrointestinal disturbance warrants a 10 percent evaluation. When the infectious hepatitis is healed, non symptomatic, a noncompensable rating will be assigned. 38 C.F.R. § 4.114, Diagnostic Code 7345 (1993). Medical records from a service medical facility, variously dated in the late 1980's and early 1990's do not show residual liver damage associated with the service-connected hepatitis. A November 1992 VA medical examination included the veteran's history of infectious hepatitis. At the time of the examination, the liver didn't bother him. Objective examination revealed that the liver was not enlarged or tender. There were no masses to deep palpation. The liver descended normally. The edge was smooth and nontender. Pertinent lab studies did not show demonstrable liver damage. The pertinent diagnosis was remote infectious hepatitis, no residual. The veteran, in hearing testimony in November 1992 denied any specific treatment for hepatitis or liver dysfunction, and noted that his six month examinations did not normally include the liver. As for gastrointestinal disturbance, he reported only staying away from "chili and things like that." This statement is nonspecific and not diagnostic of gastrointestinal disturbance associated with the hepatitis. It appears that the veteran and his representative have argued that the possibility of potential liver dysfunction should be compensated, rather than any current objective residuals of liver damage. Presently, he has no demonstrable liver damage. While the veteran asserts that it is reasonable that he has some liver damage, he has not submitted any medical evidence showing that he has liver damage, and the veteran himself is not shown to possess the medical expertise to determine the etiology of his various medical symptoms or their relationship to the hepatitis and medication prescribed in service, and his claims of medical causation are of limited probative value. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The veteran has been examined, and appropriate lab studies have been performed, without either service medical facility physicians or VA physicians finding objective manifestations to support a diagnosis of liver damage associated with the service-connected hepatitis. There is no basis for a compensable evaluation for hepatitis. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7345. In regard to the representative's request that 38 C.F.R. 4.10 be considered in evaluating the service-connected hepatitis, the Board points out that the VA diagnosis in November 1992 was infectious hepatitis, remote, no residual. 38 C.F.R. § 4.10 has been given appropriate consideration but there is no medical evidence of functional impairment. Extraschedular Considerations There is no indication in the record that the schedular evaluations are inadequate to evaluate the impairment of the appellant's earning capacity due to hepatitis, and it does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Thus, the provisions of 38 C.F.R. § 3.321 (1993) relating to extraschedular evaluations are not applicable here. We have also considered all other potentially applicable provisions of 38 C.F.R. Parts 3 and 4 (1993), whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). We have found no section that provides a basis upon which to assign a higher disability evaluation. ORDER Having found the claim for service connection for residuals of dengue fever not to be well-grounded, this issue is dismissed. A compensable evaluation for hepatitis is denied. RENÉE M. PELLETIER 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.