Citation Nr: 0000031 Decision Date: 01/03/00 Archive Date: 12/28/01 DOCKET NO. 98-19 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased disability rating for scar, post-operative pilonidal cyst, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for residuals of back injury, to include arthritis. 3. Entitlement to service connection for a back condition, to include arthritis, as secondary to service-connected post- operative pilonidal cyst. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. L. Kane, Associate Counsel INTRODUCTION The appellant had active military service from February 1964 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which, in pertinent part, denied a compensable rating for the appellant's service-connected post-operative pilonidal cyst and denied direct and secondary service connection for a back condition, including arthritis. After the appellant perfected his appeal, a January 1999 rating decision assigned a 10 percent disability rating for the post-operative scar from the pilonidal cyst. However, this was not a full grant of the benefit sought on appeal because higher disability ratings are available under other diagnostic codes pertinent to scars. On a claim for an original or an increased rating, the claimant is generally presumed to be seeking the maximum benefit allowed by law and regulation, and such a claim remains in appellate status where a subsequent rating decision awarded a higher rating, but less than the maximum available benefit. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, this issue remains before the Board. FINDINGS OF FACT 1. The appellant's claim for an increased rating for the residuals of the pilonidal cyst is plausible, and sufficient evidence has been obtained for correct disposition of this claim. 2. The appellant is currently receiving the maximum schedular disability rating for a tender, painful scar. 3. There is no objective evidence showing that the appellant's scar from the pilonidal cyst surgery is adherent, ulcerated, depressed, inflamed, or disfiguring, or that it in any way interferes with functioning of the tailbone. 4. The appellant currently has recurrent lumbar strain and degenerative joint disease of the lumbar spine. 5. The appellant has submitted competent lay evidence of injuring his back during service. 6. There is no evidence of incurrence of degenerative changes of the lumbar spine during service or within the year after the appellant's separation from service. 7. There is no medical evidence of a nexus, or link, between the claimed back condition(s) and any disease or injury during service. 8. There is no medical evidence showing that any of the appellant's back disorders were caused or aggravated by his service-connected post-operative pilonidal cyst. 9. The appellant's claims for direct and secondary service connection for a back condition, including arthritis, are not plausible. CONCLUSIONS OF LAW 1. The appellant has stated a well-grounded claim for an increased evaluation for the post-operative residuals of pilonidal cyst, and VA has satisfied its duty to assist him in development of this claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). 2. The criteria for a disability rating in excess of 10 percent for the appellant's service-connected post-operative residuals of pilonidal cyst are not met. 38 U.S.C.A. §§ 1155 and 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, and 4.71a, Diagnostic Code 7804 (1999). 3. The appellant has not presented well-grounded claims for service connection for residuals of back injury, to include arthritis, and for service connection for a back condition, to include arthritis, as secondary to service-connected post- operative pilonidal cyst, and there is no statutory duty to assist him in developing facts pertinent to these claims. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background In 1993, the appellant filed a claim for service connection for residuals of removal of a cyst during service. His service medical records showed that he was hospitalized from May to June 1965 for treatment of an inflamed pilonidal cyst. He had a purulent, draining sinus in the anal fold over the region of the coccyges. He underwent incision and drainage of the pilonidal cyst. No further problems from the cyst were noted during his remaining service. The RO obtained the appellant's VA records for treatment between February 1991 and November 1993. These records showed no treatment for a pilonidal cyst or the post- operative scar. In December 1993, the appellant underwent several VA examinations. He reported a history of excision of a pilonidal cyst in 1965 with no recurrence or any current symptomatology. Diagnoses included status following excision of pilonidal cyst without recurrence or current symptomatology. A March 1994 rating decision, inter alia, granted service connection for the scar resulting from the inservice treatment for a pilonidal cyst, with assignment of a zero percent disability rating. In April 1998, the appellant filed a claim for a compensable rating for the post-operative residuals of the pilonidal cyst. He also filed claims for service connection for residuals of a back injury that he had incurred in a fall in February 1967 and for service connection for arthritis of the spine as secondary to the pilonidal cyst surgery. With respect to the appellant's claim for a back condition, his service medical records showed no complaints of or treatment for a back disorder. The VA treatment records dated from 1991 to 1993 showed no diagnosis of a back disorder. In September 1991, he complained of sharp low back pain. Upon VA examination in December 1993, the appellant stated that he had a history of chronic low back pain for the prior 5-6 years. There was no known history of trauma to the lumbosacral spine. He indicated that his back pain was aggravated with excessive movement. He denied any sciatica or radiculopathy. His posture and gait were normal. Straight leg raising was slightly painful, but no other abnormal findings were noted. He had normal range of motion of the lumbosacral spine without tenderness. X-rays showed arthritic changes were present in the lumbosacral spine. Diagnoses included chronic lumbosacral strain. The RO obtained the appellant's VA records for treatment between June 1991 and February 1998. These records showed no treatment for a pilonidal cyst or the post-operative scar. In November 1995, he complained of back pain and indicated that he was taking pain medication. In June 1997, he stated that he continued to have chronic low back pain. In June 1998, the appellant underwent a VA physical examination. He stated that he had had low back pain for ten years, with a history of low back pain in 1965 while stationed in Guam. He stated that he also fell and injured his back in 1970. He complained that he was unable to walk more than a block continuously, unable to lift more than 25 pounds, and unable to bend. He complained of pain with motion of the lumbar spine during the examination, and range of motion was limited. He had mild pain and tenderness over the low back area. The report of the lumbosacral spine x- rays were not included, but diagnoses were recurrent lumbar strain and degenerative joint disease of the lumbar spine and spondylosis (see x-ray report). An August 1998 rating decision, inter alia, denied direct and secondary service connection for a back condition, including arthritis, and denied a compensable disability rating for the appellant's post-operative pilonidal cyst. In his substantive appeal, the appellant maintained that he was entitled to a compensable disability rating for the residuals of the pilonidal cyst because he had a scar that was disfiguring and tender. He stated that he had injured his back during service in a fall in April or May 1967 and that he had received medical treatment at that time. He also stated that the arthritis in his back was a secondary condition caused by the pilonidal cyst. In January 1999, the appellant underwent a VA physical examination for the scar from the pilonidal cyst. The scar was eight centimeters long and located over the tailbone, and he stated that it was sometimes tender when he sat for too long. There was no tissue adherence, and the texture was normal. There was no ulceration, areas of depression or elevation, or any underlying tissue loss. There was no inflammation, and the color of the scar was normal. The examiner indicated that the scar was well healed. A January 1999 rating decision granted a 10 percent disability rating for the post-operative scar from the removal of the pilonidal cyst. II. Legal Analysis A. Claim for increased rating The first responsibility of a claimant is to present a well- grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). A claim for an increased disability rating is well grounded if the claimant alleges that a service-connected condition has worsened. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In this case, the appellant has complained of increased symptoms from the post-operative pilonidal cyst, such as tenderness of the scar. He has therefore satisfied the initial burden of presenting a well-grounded claim. VA has a duty to assist the appellant in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In this case, the appellant was provided appropriate VA examinations. There is no indication of additional medical records that the RO failed to obtain. There is sufficient evidence of record to evaluate his service-connected post- operative residuals of pilonidal cyst. Therefore, the Board concludes that no further assistance to the appellant is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78 (1990); Littke v. Derwinski, 1 Vet. App. 90 (1990). Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. The ratings are intended, as far as practicably can be determined, to compensate the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 1991). Evaluation of a service-connected disorder requires a review of the appellant's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1 and 4.2 (1999). For a claim for an increased rating, the primary concern is the current level of disability. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Peyton v. Derwinski, 1 Vet. App. 282 (1991). It is also necessary to evaluate the disability from the point of view of the appellant working or seeking work, 38 C.F.R. § 4.2 (1999), and to resolve any reasonable doubt regarding the extent of the disability in the appellant's favor. 38 C.F.R. § 4.3 (1999). If there is a question as to which evaluation to apply to the appellant's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). The appellant is currently evaluated for the post-operative residuals of the pilonidal cyst as 10 percent disabled under 38 C.F.R. § 4.71a, Diagnostic Code 7804. The most obvious residual from the in-service surgery for the pilonidal cyst is the resulting scar. Under Diagnostic Codes 7800 through 7805, scars are rated according to the location, type, characteristics, or, if none of the specific criteria apply, according to limitation of function of the affected part. Under Diagnostic Code 7804, a 10 percent disability rating is assigned for superficial scars that are tender and painful on objective demonstration. The appellant has complained that the scar is painful and has been awarded a 10 percent disability rating based on his complaints. He is already receiving the maximum evaluation under the applicable diagnostic criteria for a tender scar. The appellant's scar was initially evaluated under Diagnostic Code 7805, which evaluates scars based on limitation of function of the affected part. 38 C.F.R. § 4.118 (1999). There is no medical evidence indicating that the appellant has any limitation of function of the tailbone area as a result of the surgery for the pilonidal cyst and/or the post- operative scar. Moreover, there are no diagnostic codes in the Schedule concerning limitation of function of the tailbone. Therefore, there is no basis for a disability rating in excess of 10 percent under Diagnostic Code 7805. The veteran has alleged that his scar is disfiguring. Diagnostic Code 7800 pertains to scars located on the head, face, or neck. A 30 percent disability rating under Diagnostic Code 7800 requires a severe, disfiguring scar in one of these locations. Since the appellant's service- connected scar is located on the tailbone, assignment of an increased disability rating under Diagnostic Code 7800 is not warranted. Diagnostic Codes 7801 and 7802 pertain to scars that result from burns; the appellant's scar resulted from surgery. Diagnostic Code 7803 provides a 10 percent disability rating for superficial scars that are poorly nourished with repeated ulceration. Not only is there no medical evidence showing ulceration of the appellant's scar, but this diagnostic code would not provide a rating higher than 10 percent. The evidence simply does not show that the criteria for a disability rating in excess of 10 percent have been met. There is no reasonable doubt regarding the level of the appellant's disability that could be resolved in his favor. The medical evidence shows that the scar resulting from the pilonidal cyst surgery is well healed, without any ulceration, inflammation, depression, tissue loss, or adherence. The medical evidence also does not show that he has any limitation of tailbone function as a result of the in-service surgery or the post-operative scar. There is absolutely no evidence of impairment in earning capacity because of the scar. Accordingly, the preponderance of the evidence is against assignment of a disability rating in excess of 10 percent for the appellant's service-connected post-operative residuals of pilonidal cyst. The Board has considered all other potentially applicable diagnostic codes, as discussed above, and the medical evidence does not show that any of the criteria for an increased disability rating have been met. B. Claim for direct service connection for back condition Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). It is the responsibility of a person seeking entitlement to service connection to present a well-grounded claim. 38 U.S.C.A. § 5107 (West 1991). Generally, 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). In order to be well grounded, a claim for service connection must be accompanied by supporting evidence that the particular disease, injury, or disability was incurred in or aggravated by active service; mere allegations are insufficient. Tirpak v. Derwinski, 2 Vet. App. 609, 610-611 (1992); Murphy, 1 Vet. App. at 81. A claim for service connection requires three elements to be well grounded. It requires competent (medical) evidence of a current disability; competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service; and competent (medical) evidence of a nexus between the in- service injury or disease and the current disability. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd 78 F.3d 604 (Fed.Cir. 1996) (table). This third element may be established by the use of statutory presumptions. Caluza, 7 Vet. App. at 506. Truthfulness of the evidence is presumed in determining whether a claim is well grounded. Id. at 504. Service connection may also be established for a current disability on the basis of a "presumption" under the law that certain chronic diseases manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C.A. §§ 1110, 1112, 1131 and 1137 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304, 3.307 and 3.309(a) (1999). Service connection for arthritis, including degenerative joint disease of the lumbar spine, may be established based on a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1112 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.307 and 3.309 (1999). The appellant is not entitled to presumptive service connection for degenerative joint disease of the lumbar spine. The appellant does not contend nor does the medical evidence show that degenerative changes in the lumbar spine were manifested in the year following his separation from service. The medical evidence shows that he was first found to have degenerative disease of the lumbar spine approximately 25 years after his separation from active service. The appellant currently has diagnoses of recurrent lumbar strain and degenerative joint disease of the lumbar spine. His service medical records do not show treatment for complaints of back problems, nor any evidence of incurrence of an injury. The appellant maintains that he injured his back in a fall in 1967. His statements are accepted as true for the purpose of determining whether a well-grounded claim has been submitted. King v. Brown, 5 Vet. App. 19, 21 (1993). Therefore, the first two elements of a well-grounded claim have been satisfied. However, the appellant has not satisfied the third element of a well-grounded claim for service connection. There is no medical evidence of a nexus, or link, between any inservice disease or injury and the current back disorders. As indicated above, the appellant's service medical records showed no complaints of or treatment for a back condition. The first complaints of back problems shown in the post- service medical evidence was in 1991, and the first diagnosis of a chronic back disorder was rendered in 1993. There is no evidence showing that the appellant had any back-related symptomatology prior to 1991. At no time has a medical professional indicated that the degenerative changes in the appellant's lumbar spine shown in 1993, approximately 25 years after his separation from service, are in any manner related to his military service, including the alleged injury, or that they began during service. Also, no medical professional has indicated that any other currently diagnosed back disorder (i.e., recurrent lumbar strain) is in any manner related to the appellant's military service, including the alleged injury, or that it began during service. The only evidence linking the claimed back condition(s) to the appellant's period of service consists of his current statements. Even accepting his statements as true, he cannot meet his initial burden under 38 U.S.C.A. § 5107(a) by simply presenting his own opinion. He does not have the medical expertise to render a probative opinion as to medical causation. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, the Board concludes that this claim is not well grounded. C. Claim for secondary service connection for back condition Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) (1999); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling, Leopoldo v. Brown, 4 Vet. App. 216 (1993), and Tobin v. Derwinski, 2 Vet. App. 34 (1991). In Allen, the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court) indicated that the term "disability" as used in 38 U.S.C.A. § 1110 "... refers to impairment of earning capacity, and that such definition mandates that any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether or not the additional impairment is itself a separate disease or injury caused by the service- connected condition, shall be compensated. The Court then concluded that "... pursuant to § 1110 and § 3.310(a), when aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation." Id. Thus, service connection on a secondary basis may be granted under one of two conditions. The first is when the disorder is proximately due to or the result of a disorder of service origin. In that case, all symptomatology resulting from the secondary disorder will be considered in rating the disability. The second is when a service-connected disability aggravates a nonservice-connected disability. In those cases, VA may only consider the degree of disability over and above the degree of disability prior to the aggravation. A well-grounded claim for secondary service connection for a disorder must include medical evidence that a connection or relationship between the service-connected disorder and the new disorder is plausible. Jones v. Brown, 7 Vet. App. 134, 137 (1994). Even if there is another plausible explanation for the origin of the new disorder, a claim for secondary service connection is well grounded if there is a plausible explanation, bolstered by sufficient medical evidence, of why the new disorder should be service connected. Reiber v. Brown, 7 Vet. App. 513, 517 (1995). As indicated above, the appellant has current back disorders, and he is service-connected for the post-operative residuals of a pilonidal cyst. However, there is no medical evidence showing that a connection or relationship between the service-connected disability and any diagnosed back condition is plausible. At no time has a medical professional indicated that the appellant's service-connected post- operative residuals of a pilonidal cyst have in any manner caused or aggravated any current back condition. As indicated above, the appellant is not competent to opine that such a relationship is possible. See Edenfield v. Brown, 8 Vet. App. 384, 388 (1995); Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Without competent medical evidence establishing that there is a plausible relationship between a diagnosed back disorder and the service-connected post-operative residuals of a pilonidal cyst, the appellant's claim for service connection on a secondary basis is not well grounded. See Jones, 7 Vet. App. at 137. D. Conclusion regarding service connection claims For the reasons discussed above, the appellant's claims for direct and secondary service connection for a back condition, including arthritis, are not well grounded. Until he establishes a well-grounded claim, VA has no duty to assist him in developing facts pertinent to the claim, including providing him a medical examination at VA expense. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.326(a) (1999) (VA examination will be authorized where there is a well-grounded claim for compensation); see Morton v. West, 12 Vet. App. 477 (1999) (VA cannot assist a claimant in developing a claim that is not well grounded). When a claimant refers to a specific source of evidence that could make his claim plausible, VA has a duty to inform him of the necessity to submit that evidence to complete his application for benefits. See Epps v. Brown, 9 Vet. App. 341, 344-45 (1996), aff'd Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). VA has no outstanding duty in this case to inform the appellant of the necessity to submit certain evidence to complete his application for VA benefits. See 38 U.S.C.A. § 5103(a) (West 1991). There is no indication of any medical records that might well ground either of these claims. The appellant has not alleged that any medical records exist that contain medical opinions associating the claimed back condition either with his period of military service or his service-connected pilonidal cyst. The presentation of a well-grounded claim is a threshold issue. Therefore, since the appellant has failed to present competent medical evidence that his claims for direct and secondary service connection for a back condition, including arthritis, are plausible, the claims must be denied as not well grounded. Dean v. Brown, 8 Vet. App. 449 (1995); Boeck v. Brown, 6 Vet. App. 14, 17 (1993). There is no duty to assist further in the development of these claims, because such additional development would be futile. See Murphy, 1 Vet. App. 78. ORDER Entitlement to a disability rating in excess of 10 percent for scar, post-operative pilonidal cyst, is denied. Entitlement to service connection for residuals of back injury, to include arthritis, is denied. Entitlement to service connection for a back condition, to include arthritis, as secondary to service-connected post- operative pilonidal cyst, is denied. J. SHERMAN ROBERTS Member, Board of Veterans' Appeals