BVA9502052 DOCKET NO. 93-06 111 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for sinusitis secondary to head trauma. 2. Entitlement to a compensable disability evaluation for laceration scars of the forehead, scalp and right upper eyelid. 3. Entitlement to a compensable disability evaluation for residuals of a fracture of the left mandible. 4. Entitlement to an increased rating for post-traumatic headaches, rated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL Appellant and daughter ATTORNEY FOR THE BOARD R. J. Rolfsen, Jr., Counsel INTRODUCTION The veteran served on active duty from September 1960 to September 1964. This appeal stems from a January 1992 decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). The veteran has referred to a claim for service connection for a psychiatric disability secondary to his service-connected headaches and facial scarring. This issue has not been certified or developed for appeal, is not properly before the Board, and is hereby referred to the RO for appropriate consideration. The veteran's representative has referred to claims for service connection for a scar of the left eyelid, post-concussion syndrome with tinnitus, a back disorder, a psychiatric disability to include alcoholism, a visual disorder, multiple sclerosis, hypertension and rhinitis. These issues have not been certified or developed for appeal, are not properly before the Board, and are hereby referred to the RO for any action deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he developed sinusitis as a result of the head injury in service. He also contends that his service- connected laceration scars of the forehead, scalp and right upper eyelid and residuals of a fracture of the left mandible are more disabling than recognized by the evaluations currently in effect. He maintains that his facial scars are disfiguring and warrant a compensable disability evaluation and that his jaw pops when he opens his mouth. He claims that he has severe headaches lasting up to several days. 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 service connection for sinusitis secondary to head trauma is dismissed. It is also the decision of the Board that the preponderance of the evidence supports a 10 percent disability evaluation for the veteran's residuals of a fracture of the left mandible; that the preponderance of the evidence supports a 10 percent disability evaluation for the veteran's laceration scars of the forehead, scalp and right upper eyelid; and that the preponderance of the evidence is against a rating greater than 10 percent for post-traumatic headaches. FINDINGS OF FACT 1. All relevant evidence necessary for the disposition of the veteran's appeal has been obtained. 2. The claim for service connection for sinusitis secondary to head trauma is not plausible or capable of substantation. 3. The veteran's residuals of a fracture of the left mandible are primarily manifested by a popping on movement, resulting in interference with mastication. 4. The veteran's lacerations of the forehead, scalp and right upper eyelid are primarily manifested by moderately disfiguring scars. 5. The post-traumatic headaches occur on a daily basis, but they are largely controlled with medication; they are equivalent to migraine with prostrating attacks averaging one in two months. CONCLUSIONS OF LAW 1. The claim for service connection for sinusitis secondary to head trauma is dismissed as not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The schedular criteria for a 10 percent disability evaluation for residuals of a fracture of the left mandible are met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § Part 4, Code 9904 (1993). 3. The schedular criteria for a 10 percent disability evaluation for laceration scars of the forehead, scalp and right upper eyelid are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § Part 4, Codes 7800, 7804 (1993). 4. The schedular criteria for a rating greater than 10 percent for post-traumatic headaches are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. 4.20, § Part 4, Code 8100 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for Sinusitis The veteran contends that he has developed sinusitis as a result of the head injury in service. Service connection has been established for residuals of fractures of the nasal bones and the left mandible. The service medical records indicate that he was seen in June 1962 with complaints of a stuffy nose and postnasal drainage; the impression was suspected sinusitis. X-rays resulted in an impression of acute left maxillary and ethmoidal sinusitis. The head injury was a result of a car accident in August 1962. The veteran was seen again for sinusitis in April 1964. The remaining service medical records are negative for reference to sinusitis and the September 1964 separation examination indicated that his sinuses were normal on clinical evaluation. It was noted that he had been treated for sinusitis, but there were no complications or sequelae. The veteran was examined by the VA in February 1972 and physical examination indicated that his sinuses were normal. Service connection for sinusitis was denied by rating decision in March 1972. The veteran was informed of the determination in March 1972. He did not appeal. The veteran was examined by the VA in October 1991. At this examination, although he complained of getting congested and blocked, there was no evidence of sinusitis. His sinuses appeared to transluminate very well and his nasal cavity was not obstructed; he had had a good surgical repair of any obstruction. Also, there was no evidence of infection. The veteran and his daughter gave testimony in support of his claim at a June 1992 hearing held at the RO. At this hearing he testified that he thought that he had sinusitis due to his fractured nose. Records submitted in July 1992 show that in 1988 the veteran underwent surgery for sinus mucocele. He was examined again by the VA in September 1992 and complained of chronic sinus problems and that his nose is chronically blocked and is much worse in the fall season than other times of the year. It was noted that he had had a large mucocele removed from his left maxillary sinus approximately two years previous and, although improvement in his symptoms was noted, he continued to have recurring episodes of blockage. Physical examination noted that the septum was relatively straight and that the lower turbinates were of normal size and character. The middle turbinates appeared to have been partially resected and each middle meatus was open widely. There was no evidence of infection or drainage from any of the paranasal areas and there was no tenderness or abnormalities over any of the sinuses. Under the law, service connection is warranted for disabilities resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131. Also, service connection is warranted for disabilities which are proximately due to or the result of service connected disability. 38 C.F.R. § 3.310. 38 U.S.C.A. § 5107 provides that 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. The United States Court of Veterans Appeals has recently held that: Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim under section 5107(a). See Cartwright v. Derwinski, 2 Vet. App. 24 (1992). However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. See Murphy v. Derwinski, 1 Vet. App. 78 (1990). A claimant would not meet this burden imposed by section 5107(a) merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, lay assertions of medical causation cannot constitute evidence to render a claim well grounded under section 5107(a). If no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) Grottveit v. Brown, 5 Vet. App. 91,93 (1993) In this case, a claim for service connection for sinusitis was denied by final rating decision in March 1972 on the basis that the condition was not found on the last examination. The current claim has been considered by the RO without regard to the prior final rating decision. We agree with this approach because the veteran is claiming service connection for sinusitis under a new theory of entitlement, that is, secondary to inservice head trauma. Accordingly, the Board will also consider the merits of the claim. There is no evidence that the veteran has any level of medical expertise. Therefore, his contentions are beyond his level of medical competence and do need to be accepted as true for the purposes of determining whether his claim is well grounded. Also, there has been submitted no competent evidence either that he has chronic sinusitis or, for that matter, of a relationship between the head injury in service and any post-service chronic sinus disability. Accordingly, since he has submitted no cognizable evidence that would support his contentions, the Board finds that he has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded. Thus, since the Board does not have jurisdiction to adjudicate his claim, his appeal is dismissed. See Boeck v. Brown, 6 Vet.App. 14 (1993). The claim has been dismissed by the Board, and, therefore, there is no prejudicial effect. II. Increased Disability Evaluations Initially, the Board finds that the veteran's claims for increased disability evaluations are "well grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is also satisfied that all relevant evidence has been properly developed and that there is no further duty to assist the veteran in order to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107. Disability evaluations are based upon the average impairment of earning capacity resulting from a disability. 38 U.S.C.A. § 1155. Finally, 38 U.S.C.A. § 5107 provides in pertinent part that when, after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such matter shall be given to the claimant. A. Residuals of a Fracture of the Left Mandible The service medical records indicate that May 1961; X-rays revealed a transverse fracture involving the ramus of the left mandible with extreme angulation (nearly 90%) and cranialwards displacement of the mandible head. By rating decision in March 1972 service connection was established for residuals of a fracture of the left mandible and a disability evaluation of noncompensable was assigned under the provisions of 38 C.F.R. § Part 4, Code 9904. This evaluation contemplates malunion of the mandible with slight displacement. A note to this Diagnostic Code provides that the evaluation should be dependent upon the degree of motion and the relative loss of masticatory function. In order to be entitled to a 10 percent disability evaluation, the evidence must demonstrate malunion of the mandible with moderate displacement. Under Diagnostic Code 9905, a 10 percent rating is warranted for any definite limitation interfering with mastication. Applying these laws and regulations to the particular facts of this case, we conclude that a 10 percent rating is warranted. The veteran was examined by VA in January 1980 and it was noted that there was no limitation of movement upon opening or lateral movements and no malocclusion. Also, radiographs were negative for evidence of a fracture of the jaw. The veteran was examined again by the VA in October 1991. At this examination, he complained that his left temporomandibular joint pops whenever he opens his mouth and that he had chronic mouth discomfort. On physical examination there was some popping of the left temporomandibular joint when he opened his mouth. The examiner commented that the veteran did have some residual problems with a popping of the left temporomandibular joint on motion, but that he saw no other significant abnormalities. At the June 1992 hearing, the veteran testified that "every two weeks or so" his jaw pops and cracks real bad and that if he eats solid foods or something hard to chew his jaws will get tender and sore. He was examined most recently by VA in September 1992 and complained that his left jaw popped and clicked whenever he opened his mouth widely or chewed and that this caused discomfort in the left jaw area. On physical examination, the jaw joint on the left side clicked loudly whenever he moved the jaw vertically or laterally; there were no other significant changes. After reviewing all the evidence of record the Board finds that a 10 percent rating is in order. Although neither mandible displacement nor limited motion is shown, there is clear evidence of some interference with mastication. For this reason, we find that the disability is more nearly equivalent that which warrants a 10 percent rating under Diagnostic Code 9905. B. Lacerations of the Forehead, Scalp and Right Upper Eyelid The May 1960 service entrance examination indicates that the veteran had a 1 inch scar on the left side of the mid forehead on entrance into service. He was involved in an automobile accident in July 1962 in which he received a laceration of the forehead and scalp. Physical examination revealed an 8 centimeter, deep, "U" shaped laceration over the right parietal portion of his scalp and forehead. He was seen in September 1963 for suturing of a laceration of the right eyelid. By rating decision in March 1972 service connection was established for laceration scars of the forehead, scalp and right upper eyelid and a disability evaluation of noncompensable was assigned under the provisions of 38 C.F.R. § Part 4, Code 7800. This evaluation contemplates slightly disfiguring scars of the head, face or neck. In order to be entitled to a compensable disability evaluation, the evidence must demonstrate moderately disfiguring scars. Additionally, 38 C.F.R. § Part 4 Code 7804 provides that a 10 percent disability evaluation is warranted for superficial scars that are tender and painful on objective demonstration. Applying these laws and regulations to the particular facts of this case, it is apparent that an increased disability evaluation of 10 percent rating is warranted. At the June 1992 hearing, the veteran testified that his scars had had a negative impact upon his employability. He also testified that the scar on his nose became uncomfortable if he had to wipe his nose several times. The veteran was examined by the VA in September 1992. At this examination, he reported that his nasal and orbital scars got sore when he has an upper respiratory infection or sinusitis. Physical examination revealed a 5.5 centimeter scar in the mid forehead which was vertical and which ended in a deformity in the medial brow area. There were two small scars without hair growth in the scalp, one in the right temple and one in the occiput on the right. The scar in the right temple was .71 centimeters and depressed; the scar in the right occiput was 1.75 centimeters. There was a 3 centimeter well-healed scar of the left upper lid instead of the right. Initially, the Board notes that the only scars under consideration are those of the forehead, scalp and right upper eyelid. Color photographs that were taken at the September 1992 VA examination have been reviewed; these photographs show that the scars under consideration are moderately disfiguring, but no more than moderately disfiguring, particularly the large forehead scar. Although not discolored, the scar is prominent and includes a noticeable deformity in the mid-brow area. However, none of the scars are objectively tender and painful. The Board notes the veteran's contentions that his scar of the eyelid should be of the left eye and not the right; however, the service medical records are clear in that he was treated for a laceration of the right eyelid. Additionally, as noted in the Introduction section of this decision, the issue of entitlement to service connection for a scar of the left upper eyelid is referred to the RO for any action deemed appropriate. If a scar of the left upper eyelid should have been service-connected instead of the right upper eyelid, then action will be taken by the RO to remedy this error. C. Post-Traumatic Headaches The veteran sustained a traumatic head injury in service in a motor vehicle accident. On a VA neurology examination in 1991, he reported headaches ever since this trauma. The headaches were not constant. He got partial relief from Tylenol. He was occasionally, but only rarely, disabled from the headaches to the point that he had to quit working. The headaches were present most days. They came and went irregularly, lasting sometimes two to three days, but usually less. He rarely became nauseated or had visual disturbances. The impression was that the headaches were almost certainly multifactorial. Some headaches may be related to hypertension; others were related to the head trauma; some may be due to vascular like headaches. It was impossible to state the percentage due to facial trauma. At the 1992 hearing, the veteran testified that he usually had daily or weekly headaches which he described as very painful. They made him nauseated. VA outpatient treatment records in 1992 reflect that the veteran reported nearly continuous headaches which caused severe, sharp pain, occurred approximately three to four times a week, and were associated with visual blurring. He was prescribed medication for "severe" headaches. Later in 1992, he continued to report daily severe headaches. On VA examination in October 1992, he reported daily headaches lasting ten to twelve hours. Medication decreased the pain, but did not take it away entirely. The diagnosis was post-traumatic headaches with increased frequency. A February 1993 rating decision increased the rating for the headaches from noncompensable to 10 percent disabling, rating by analogy to migraine. Under Diagnostic Code 8100, migraine with characteristic prostrating attacks averaging one in two months over the last several months warrants a 10 percent rating.. Migraine with characteristic prostrating attacks occurring on an average of once a month over the last several months warrants a 30 percent rating. The medical evidence shows that some of the veteran's headaches are not post-traumatic in etiology. He describes daily headaches occasionally associated with nausea or visual blurring, which he claims incapacitate him. On the other hand, he also claims relief of symptoms, although not entirely, with medication. Because his headaches can, to a great extent, be controlled with treatment, we do not find that they are equivalent to migraine with prostrating attacks which average once a month. over the last several months. Accordingly, a rating of more than 10 percent is not in order. In reaching its decision, the Board has considered the complete history of the disabilities in question as well as the current clinical manifestations and the effect the disabilities may have on the earning capacity of the veteran . 38 C.F.R. §§ 4.1, 4.2, 4.41 (1993). The nature of the original injuries has been reviewed and the functional impairment that can be attributed to pain or weakness has been taken into account. 38 C.F.R. § 4.40 (1993). Furthermore, the Board finds that in this case the disability picture is not so exceptional or unusual so as to warrant an evaluation on an extraschedular basis. It has not been shown that the veteran's laceration scars of the forehead, scalp and right upper eyelid or residuals of a fracture of the left mandible or the post-traumatic headaches, standing alone, have caused marked interference with employability or necessitated frequent periods of hospitalization beyond that contemplated by the evaluations currently in effect. 38 C.F.R. § 3.321(b)(1) (1993). The criteria for an evaluation greater than that assigned have not been met or approximated as explained above. 38 C.F.R. § 4.7 (1993). With respect to this determination, where the evidence was so evenly balanced so as to raise doubt as to any material issue, such doubt was resolved in the veteran's favor. 38 U.S.C.A. § 5107. ORDER As a well-grounded claim for entitlement to service connection for sinusitis secondary to head trauma has not been submitted; the claim is dismissed. Entitlement to a 10 percent disability evaluation for residuals of a fracture of the left mandible is granted subject to the regulations applicable to the payment of monetary benefits. Entitlement to a 10 percent disability evaluation for lacerations of the forehead, scalp and right upper eyelid is granted subject to the regulations applicable to the payment of monetary benefits. Entitlement to a rating greater than 10 percent for post- traumatic headaches is denied. (CONTINUED ON NEXT PAGE) NANCY I. PHILLIPS 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.