Citation Nr: 0006536 Decision Date: 03/10/00 Archive Date: 03/17/00 DOCKET NO. 98-15 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for bilateral pes planus. 2. Determination of the proper initial rating for a service- connected scar residual of excision of dermal fibroma of the left little finger. REPRESENTATION Appellant represented by: South Carolina Department of Veterans Affairs ATTORNEY FOR THE BOARD Richard A. Cohn, Associate Counsel INTRODUCTION The veteran served on active duty from August 1993 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO) which denied service connection for pes planus, which granted service connection at a noncompensable disability rating for a scar residual from excision of dermal fibroma of the left little finger, and which granted service connection at a 10 percent disability rating for hypertension. The Board notes that in a September 1998 written statement the veteran withdrew his appeal on the hypertension issue which, accordingly, is not on appeal before the Board. The Board also notes that the RO has not acted upon the veteran's January 1998 claim of entitlement to service connection for right shoulder and right foot disorders. The Board refers these matters back to the RO for appropriate action. FINDINGS OF FACT 1. There is no competent medical evidence linking current bilateral pes planus with the veteran's period of active service. 2. The veteran's service-connected scar residual of excision of dermal fibroma of the left little finger is objectively asymptomatic. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for bilateral pes planus is not well grounded. 38 U.S.C.A. §5107(a) (West 1991). 2. The initial noncompensable rating assigned for a scar residual of excision of dermal fibroma of the left little finger is appropriate, and criteria for assignment of a compensable rating have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1-4.14, 4.118, Diagnostic Code 7805 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he is entitled to service connection for bilateral pes planus which was aggravated during his period of active service. He does not claim to have incurred bilateral pes planus in service but only that it was exacerbated by service. The veteran also contends that the initial noncompensable evaluation for his service- connected scar residual from excision of dermal fibroma of the left little finger inadequately reflects the severity of his symptomatology. Service connection for pes planus A veteran is entitled to service connection for a disability resulting from disease or injury incurred or aggravated in the line of duty during service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). A veteran serving during a period of war or during peacetime after December 31, 1946, is presumed to have been in sound condition at the time of entry into service except for defects noted in preentry examination. The government has the burden of rebutting the presumption of soundness by showing clear and unmistakable evidence both that a disorder which manifested in service existed before service, and that the disorder was not aggravated in service. 38 U.S.C.A. § 1132 (West 1991); 38 C.F.R. § 3.304(b) (1999) Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Aggravation is established whenever evidence shows an in- service increase in the severity of a preexisting disorder absent a specific factual finding that the increase was due to the natural progress of the disorder. 38 U.S.C.A. § 1153 (West 1991); 38 C.F.R. § 3.306(a), (b) (1999); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Determination of whether a disorder worsened in service requires VA to consider the totality of a veteran's recorded medical history, not merely symptoms noted at time of entry into service. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991); Green v. Derwinski, 1 Vet. App. 320, 323 (1991); Jensen v. Brown, 4 Vet. App. 304, 306-307 (1993). Temporary or intermittent flare-ups of a preexisting disorder do not constitute aggravation unless the underlying condition, as distinguished from its symptoms, has worsened. See Hunt, 1 Vet. App. at 296-97. The threshold question for the Board, however, is whether the veteran presents a well-grounded claim for service connection. A well-grounded claim is plausible, capable of substantiation or meritorious on its own. 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). While a claim need not be conclusive there must be some supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Absent evidence of a well-grounded claim there is no duty to assist a veteran develop facts pertinent to the claim and the claim must fail. Epps v. Gober, 126 F.3d 1464, 1467-68 (1997). To establish a well-grounded claim for service connection a veteran must demonstrate a current disability, incurrence or aggravation of a disease or injury in service, and a nexus between the current disability and the in-service injury. Id. at 1467-1468. Medical evidence is required to establish a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may prove service incurrence or aggravation. Id. at 1468. Alternatively, a veteran may establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b), which is applicable where evidence, regardless of date, shows a chronic disorder in service or during an applicable presumption period, and that that same disorder currently exists. This evidence must be medical unless the condition at issue is of a type for which case law considers lay observation sufficient. If the chronicity provision is not applicable, a claim still may be well grounded pursuant to the same provision if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). The veteran unquestionably had pes planus prior to his entry into service. The July 1993 report of his enlistment physical examination notes moderate, asymptomatic pes planus. In a March 1998 written statement the veteran acknowledges his preexisting pes planus. Service medical records (SMRs) document the veteran's treatment for various foot disorders. The SMRs demonstrate treatment for a July 1994 right foot injury and for right foot discomfort in January and February 1997, and include diagnoses for right foot fasciitis and right second metatarsalgia with associated bilateral pes planus. A report of a March 1997 examination notes the veteran's complaint that his bilateral pes planus foot pain was not relieved by arch supports. Physical examination disclosed supple bilateral pes planus, relatively normal hind- and midfoot mechanics, normal distal neurovascular function and minimal tenderness under the second metatarsal head. X-ray examination disclosed pes planus without involvement of the second metatarsal phalangeal joint. The report of the veteran's July 1997 separation physical examination includes a normal clinical evaluation of his feet; on the accompanying report of medical history, the veteran indicated that he had a history of right second metatarsalgia with bilateral pes planus, not considered disqualifying. Post-service VA examination in October 1997 revealed no pain upon palpation of the plantar surfaces of the veteran's feet. The diagnoses included pes planus and the examiner noted that the veteran had this disorder mostly on the right second metatarsal, but the examiner again noted that on examination, there was no pain on palpation. The examiner did not express the opinion that the veteran's preexisting bilateral pes planus worsened in service. Beyond the appellant's own statements, there is no competent medical evidence showing that the veteran's pes planus worsened during his period of active service. However, because the veteran is a lay person with no medical training or expertise, his statements alone cannot constitute competent evidence of a worsening of this disorder. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (holding that lay persons are not competent to offer medical opinions). Inasmuch as the record is devoid of competent medical evidence relating the veteran's preexisting pes planus to his military service, his claim for service connection for aggravation of pes planus is implausible and must be denied as not well grounded. Because the veteran has failed to meet his initial burden of submitting evidence of a well-grounded claim for service connection the VA is under no duty to assist him in developing the facts pertinent to his claim. See Epps, 126 F.3d at 1468. As the Board is unaware of additional evidence that might well ground the veteran's claim, a duty to notify does not arise pursuant to 38 U.S.C.A. § 5103(a). See McKnight v. Gober, 131 F.3d 1483, 1484-1485 (Fed. Cir. 1997). That notwithstanding, the Board views its discussion as sufficient to inform the veteran of the elements necessary to well ground his claim, and an explanation as to why his current attempt fails. Disability evaluation of a service-connected scar The Board finds initially that the veteran's claim is well grounded, see 38 U.S.C.A. § 5107(a) (West 1991), because a challenge to a disability rating assigned to a service- connected disability is sufficient to establish a well- grounded claim for an increased rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Caffrey v. Brown, 6 Vet. App. 337, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The Board also is satisfied that the record includes all evidence necessary for the equitable disposition of this appeal and that the veteran requires no further assistance. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (rating schedule) to the veteran's current symptomatology. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4 (1999). The Board reviews the extent to which a service-connected disability adversely affects the veteran's ability to function under the conditions of ordinary daily life. The Board then assigns a rating which, as far as practicable, is based upon the extent to which the current disability impairs the veteran's earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. If two evaluations are potentially applicable the higher evaluation will be assigned if the disability appears to approximate more closely the criteria required for that rating. Otherwise, the Board assigns the lower rating. 38 C.F.R. § 4.7. In a claim of disagreement with a disability rating assigned contemporaneously to a grant of entitlement to service connection, the facts of a particular case may require assignment of separate disability ratings for separate time periods. Fenderson v. West, 12 Vet. App. at 126. The RO first granted service connection for a scar residual from excision of dermal fibroma of the left little finger in February 1998 and assigned a noncompensable disability rating under Diagnostic Code (DC) 7805. Under 38 C.F.R. § 4118, DC 7805, a scar is rated on limitation of function of the affected body part. Medical evidence associated with the claims file discloses that at the time of the February 1998 rating decision the veteran's scar was asymptomatic. SMRs confirm that after the veteran's August 1995 in-service surgery for excision of a nodule over the PIP joint on his left little finger he had restricted use of his left hand. The nodule apparently recurred in June 1997, at which time the veteran reported discomfort and interference with the use of his left hand. Physical examination disclosed a firm, round area of about 3 mm over the PIP joint consistent with recurrence of the dermal fibroma. Left little finger range of motion was normal. A July 1997 Occupational Therapy Evaluation report noted limited left little finger motion and diminished left hand grip strength. Separation examination in July 1997 revealed a scar/keloid on the right 5th digit (flexor) and it was noted that the veteran had a fibroma scar that was not considered disqualifying. At an October 1997 VA examination the veteran reported occasional left hand pain. The examiner noted that the veteran had had a fibromatous cyst removed from the palmar surface of the left hand. He noted that the veteran had good left hand grip and hand function. The examiner indicated that there was no abnormality of the left hand. In his March 1998 written statement the veteran claimed that he was unable to find work, in part, because of his left hand disorder. However, he did not describe a loss of left hand function or other left hand symptomatology, or explain how the scar on his left little finger precluded him from finding work. In the Board's judgment a review of the totality of the medical evidence describing the veteran's symptomatology does not indicate that since its incurrence the veteran's scar residual from excision of dermal fibroma of the left little finger has been more disabling than contemplated by the currently assigned noncompensable evaluation. This evaluation is consistent with an asymptomatic left hand. The claims file includes no evidence that the veteran's scar residual from excision of dermal fibroma of the left little finger currently limits left hand function in any way. In reaching its decision, the Board has considered whether a higher rating is warranted under other DCs. In this regard, a 10 percent evaluation is warranted for superficial scars that are poorly nourished with repeated ulceration, and for superficial scars that are tender and painful on objective demonstration. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804 (1999). A zero percent evaluation is assigned in the absence of these symptoms. 38 C.F.R. § 4.31 (1999). Further, ankylosis of any single finger other than the thumb, index or middle will be rated 0 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5227 (1999). However, extremely unfavorable ankylosis will be rated as amputation under Diagnostic Codes 5152 through 5156. Clearly, the evidence, as set forth above, does not include findings that meet any of the applicable criteria under these codes. The scar has not been described as poorly nourished, or painful and tender, and on most recent examination, there was no evidence of ankylosis. Further, the Board also has carefully considered the possible application of other provisions of 38 C.F.R., Parts 3 and 4, (pertaining to extra-schedular evaluation) notwithstanding whether the veteran or his representative requested such consideration. See Schafrath v. Derwinski, 1 Vet. App. 589, 592-3 (1991). However, the Board finds that the record does not show the veteran's disability to be so exceptional or unusual, with factors such as marked interference with employment or repeated hospitalization, as to render application of the regular schedular standards impractical and warrant extra-schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER The claim for service connection for bilateral pes planus is denied. The claim for a compensable evaluation for scar residual of excision of dermal fibroma of the left little finger is denied. S. L. KENNEDY Member, Board of Veterans' Appeals