Citation Nr: 0004652 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 97-20 192A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for hypertension (HTN) as secondary to service-connected anxiety reaction. 2. Entitlement to a rating in excess of 10 percent for residuals of a gunshot wound (GSW) of the left temporal area. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from August 1940 to October 1943. This matter comes to the Board of Veterans' Appeals (Board) from rating determinations of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In a decision dated in March 1965, the Board denied entitlement to service connection for arteriosclerotic heart disease. Subsequent to that decision the veteran has been diagnosed as having hypertension. Since the diagnosis of hypertension is new, the Board will consider the claim for service connection for that disease on a de novo basis. Ephraim v. Brown, 82 F.3d 399 (Fed. Cir. 1996) (a claim based on a new diagnosis constitutes a new claim). FINDINGS OF FACT 1. There is competent evidence that the service connected anxiety reaction aggravates the veteran's current hypertension. 2. The veteran's GSW scar in the left temporal region is manifested by no more than moderate disfigurement. CONCLUSIONS OF LAW 1. The claim for service connection for HTN as secondary to service connected anxiety reaction is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for entitlement to a rating in excess of 10 percent for a residual scar of a GSW to the left temporal area are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.10, 4.118, Diagnostic Code (DC) 7800 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service Connection for Hypertension Factual Background The veteran's service medical records contain no findings referable to HTN. By rating decision in December 1943, service connection was established for an anxiety disorder. The veteran contends that he currently suffers from HTN as a result of his service-connected anxiety reaction. The record includes private and VA records that reflect that the veteran experienced a myocardial infarction in 1963. Subsequently, he reportedly remained relatively asymptomatic until June 1995 when he experienced the onset of angina. Contemporaneous clinical documents note that he had a medical history that included HTN. In a March 1998 VA General Medical examination report. The examining physician stated the following: I was unable to establish any direct relationship between patient's anxiety problems and his blood pressure based on the clinical information provided to me by the patient and a review of his C- file. Theoretically, however, it is possible that anxiety can indeed increase the blood pressure of a patient suffering from hypertension and treatment directed at reducing anxiety usually has a beneficial effect on blood pressure. In a VA heart and hypertension examination in March 1998, the examiner concluded that the veteran's anxiety state and stressful situations could aggravate his hypertension (and his coronary artery disease). The RO cited an opinion in a rating action in July 1996, from D. Pamela Steele, M.D., M.P.H., Acting Director Medical Service, VHA, Cardiovascular Disease Service dated August 14, 1995, which allegedly asserted that there was no current medical literature that established a relationship between stress, anxiety, or other psychiatric disability and the subsequent onset of HTN. The Board notes that this record is no longer included in the claims file. Law and Regulations The threshold question to be answered is whether the appellant has presented evidence of a well grounded claim, that is, a claim which is plausible and meritorious on its own or capable of substantiation. If he has not, his appeal must fail and the Board has no duty to further assist him with the development of his claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Case law provides that, although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Dixon v. Derwinski, 3 Vet. App. 261, 262 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order 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). Caluza v. Brown, 7 Vet. App. 498 (1995); see also Epps v. Gober, 126 F.3d 1464 (1997) cert. denied 118 S.Ct. 2348 (1998). Under the provisions of 38 C.F.R. § 3.303(b), chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. The second and third Caluza elements can also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Clyburn v. West, 12 Vet. App. 296 (1999); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Alternatively, service connection may be established under § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Brewer v. West, 11 Vet. App. 228, 231 (1998). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Sacks v. West, 11 Vet. App. 314, 315 (1998); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation or diagnosis cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes for determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. King v. Derwinski, 5 Vet. App. 19, 21 (1993). A secondary service connection claim is well grounded only if there is medical evidence to connect the asserted secondary condition to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Velez v. West, 10 Vet. App. 432 (1997); see Locher v. Brown, 9 Vet. App. 535, 538-39 (1996) (citing Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995), for the proposition that lay evidence linking a fall to a service-connected weakened leg sufficed on that point as long as there was "medical evidence connecting a currently diagnosed back disability to the fall"); Jones (Wayne) v. Brown, 7 Vet. App. 134, 136-37 (1994) (lay testimony that one condition was caused by a service-connected condition was insufficient to well ground a claim). Analysis The Board finds that there is competent evidence that the veteran's current hypertension is aggravated by the service connected anxiety reaction. This evidence comes in the form of the opinion expressed by the VA heart and hypertension examiner in March 1997, and is somewhat supported by the opinion of the general medical examiner. Accordingly, the Board concludes that the claim for service connection for hypertension secondary to anxiety reaction is well grounded. Increased Rating Factual Background The veteran seeks entitlement to a rating in excess of 10 percent for a residual GSW scar of the left temporal area. Review of the record shows that in a December 1943 rating action, service connection for a psychiatric disorder and the left temple scar was established as part and parcel of the same disability. At that time, the RO considered service medical records (SMRs) which reflected that the veteran had a severe battle reaction after suffering the shell fragment head injury. Separate ratings for these disorder were ultimately established and a 30 percent rating remained in effect for the scar for several years. However, upon rating decision in July 1956, the RO determined that a 10 percent rating was warranted under DC 7800 regarding scars from December 1, 1956, based on VA clinical findings from July 1956 which showed that the scar was slightly adherent and resulted in some facial disfigurement. There was no evidence of nerve damage. The 10 percent rating was continued over the years in numerous RO rating decisions. A private X-ray report in July 1993 reflects that a small metallic fragment remained in the left temporal area, but it did not appear that the fragment penetrated in the left orbit. No abnormal symptoms were indicated. This appeal ensued following a July 1996 rating decision that confirmed the 10 percent evaluation. The evidence considered by the RO in July 1996 included VA outpatient treatment report dated from May 1995 to March 1996 and private treatment records dated from 1987 through 1996. These records are silent for treatment of the scar or for any related complaints. Upon VA scar examination in May 1997, it was noted that the veteran had incurred scars in the left temporal area in March 1943. The shrapnel had not been removed. The veteran complained of intermittent headaches, although he related that had decreased in recent years. It was noted that the veteran had a 3 1/2-cm. scar on the side of the left eye. The scar was noted to be minimally distracting from a side view, and to curve with the veteran's skin lines. The scar was slightly raised. Examination of the scar revealed no keloid formation. It was non-tender and did not limit function. It was slightly raised and inflamed. At a personal hearing in September 1997, the veteran and his wife testified in support of his claim. The hearing officer indicated that the scar was visible noting that it was "right by the left eye." The veteran described some numbness in the scar area. His wife said that he no longer experienced severe headaches as he had in the past. The veteran said that he had occasional headaches. Hearing [Hrg.] Transcript [Tr.] at 8. Additional VA general examination in March 1998 reflects that the veteran had multiple scars in the left temporal region. The examiner did not associate any current complaints with the scars. Neurological examination was within normal limits. Laws and Regulations A person who submits a claim for benefits under a law administered by the VA 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) (West 1991). Where a disability has already been service-connected and there is a claim for an increased rating, a mere allegation that the disability has become more severe is sufficient to establish a well-grounded claim. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Accordingly, the Board finds that the veteran's claims for increased ratings are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole-recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1999). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.49 (1999); DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Once the evidence is assembled, the Secretary is responsible for determining whether the preponderance of the evidence is against the claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. Id. Where there is a question as to which of two evaluations shall be applied, 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 veteran's service-connected scar as a residuals of a GSW to the left temporal area is rated pursuant to DC 7800 for disfiguring scars of the head, face or neck. A noncompensable evaluation is warranted for slight impairment and a 10 percent evaluation is warranted for moderately disfiguring impairment. A 30 percent evaluation is warranted for severe impairment, especially if producing a marked and unsightly deformity of eyelids, lips and auricles. 38 C.F.R. § 4.118, DC 7800 (1999). The Rating Schedule also provides that a 10 percent rating is warranted for scars that are superficial, poorly nourished with repeated ulcerations or superficial, tender, and painful on objective demonstration. 38 C.F.R. § 4.118, DCs 7803, 7804 (1999). Additional DCs considered by the Board include 38 C.F.R. § 4.124a, 8205 and 8207 (1999), for rating disability due to paralysis of the fifth (trigeminal) cranial nerve and paralysis of the seventh (facial) cranial nerve. As to DC 8205, disability from lesions of the peripheral portions of the first, second, third, fourth, sixth, and eighth nerves will be rated under diagnostic codes pertaining to evaluation of disability of the organs of special sense. Moderate incomplete paralysis of the fifth cranial nerve warrants a 10 percent evaluation while severe incomplete paralysis warrants a 30 percent evaluation. For a 50 percent evaluation, there must be complete paralysis. 38 C.F.R. § 4.124a, Diagnostic Code 8207, provides for a 10 percent evaluation for moderate incomplete paralysis and a 20 percent evaluation requires severe incomplete paralysis. A 30 percent evaluation requires complete paralysis. Analysis Initially, the Board points out that in evaluating the severity of a particular disability it is essential to consider its history. 38 C.F.R. § 4.1 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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). In such cases, separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Id., slip op. at 9. On the other hand, where entitlement to compensation has already been established, as is the claim herein at issue, the appellant's disagreement with an assigned rating is a new claim for increased benefits based on facts different from a prior final claim. Suttman v. Brown, 5 Vet. App. 127, 136 (1993). The veteran is currently assigned a 10 percent evaluation for his service-connected scar of the left temporal area pursuant to DC 7800 for disfiguring scars of the facial area. The maximum rating pursuant to DCs 7803 and 7804 for scars that are superficial, poorly nourished, with repeated ulceration, or tender and painful scars is 10 percent. Thus, the veteran cannot receive a rating in excess of 10 percent under those codes. Under 7800, however, he could be assigned a higher disability evaluation (30 percent) if he exhibited disfiguring scars of the head, face, or neck which were severe, especially if producing a marked or and unsightly deformity of the eyelids, lips, or auricles. The residual scarring from the GSW is visible as noted by the hearing officer and at the most recent March 1998 examination. However, a VA examiner described the veteran's scaring as only slightly distracting. The scar is relatively short, and does not involve the eyelids, lips or auricles. The scars are not shown to be severely disfiguring and the scarring is not otherwise shown to be symptomatic or repugnant nor to cause any functional impairment. Thus, a rating in excess of 10 percent is also not warranted pursuant to DC 7800. As to the nerve damage in the facial area, the Board notes that neurological examination in March 1998 was within normal limits. Thus, DCs 8205 and 8207 are not for application in this case. The Board also finds that the current evaluation contemplates the symptomatology and resulting impairment demonstrated in the medical evidence of record. The Board concurs with the RO that there are no unusual or exceptional factors such as to warrant an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b) (1) (1999), and notes that the veteran has not asserted that there are any such factors. ORDER The claim for service connection for HTN secondary to service connected anxiety reaction is well grounded. A rating in excess of 10 percent for a residual GSW scar of the left temporal area is denied. REMAND Since the claim of entitlement to service connection for HTN as secondary to service-connected anxiety reaction is well grounded, VA has a duty to assist the veteran with the development of his claim. Under the circumstances, the Board believes that further development and clarification of matters of medical complexity is necessary. Accordingly, the case is hereby REMANDED to the RO for the following actions: 1. The RO should request the veteran to identify the names, addresses, and approximate dates of treatment for all health care providers, VA or private, inpatient or outpatient, who may possess additional records of treatment pertinent to his claim that are not already of record. After securing any necessary authorization from the veteran, the RO should attempt to obtain copies of these treatment records identified by the veteran. 2. The RO should attempt to obtain a copy of the opinion by Dr. Pamela Steele, M.D., M.P.H., Acting Director Medical Service, VHA, Cardiovascular Disease Service, dated August 14, 1995, and referred to in the rating action of July 1996. This document should be added to the claims file. 3. The veteran should then be scheduled for an appropriate VA examination to ascertain whether the diagnosed HTN is either directly due to the veteran's service-connected anxiety reaction, or whether it has been aggravated by the service-connected anxiety, as outlined in 38 C.F.R. § 3.310 and Allen v. Brown, 7 Vet. App. 439. The examiner should review the claim file in connection with the examination, and all indicated special studies and tests should be accomplished. The examiner should clearly set forth a rationale for all opinions expressed, and the examiner should be requested to specifically comment on whether the opinions expressed by Dr. Steele and the VA examiner in March 1998 are actually in opposition to each other regarding a relationship between anxiety and HTN. 4. After completion of the above, the RO should review the expanded record and determine whether the veteran's claim can be granted. The RO should clearly consider secondary service connection and the dictates set forth in Allen, supra. If the benefit sought is not granted, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The purpose of this remand is to clarify complex medical questions, resolve conflicting medical opinions, and to ensure a proper record for appellate review. The Board intimates no opinions as to the eventual determination to be made. The veteran and his representative are free to submit additional evidence and argument is support of the claim. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is advised that the examination requested in this remand is necessary to adjudicate his claim and that his failure, without good cause to report for scheduled examinations could result in the denial of his claim. 38 C.F.R. § 3.655 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Mark D. Hindin Member, Board of Veterans' Appeals