BVA9502410 DOCKET NO. 90-04 416 ) DATE ) ) On appeal from a decision of the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased evaluation for multiple lipoma excision scars over the lumbar region, left forearm, abdomen, chest and thighs, with postoperative scars of the lumbar region, left forearm, neck, abdomen, chest and thighs, currently evaluated as 10 percent disabling. 2. Entitlement to an increased evaluation for a postoperative appendectomy scar, currently evaluated as 10 percent disabling. 3. Entitlement to an increased (compensable) evaluation for hepatitis. 4. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for arthritis with bone deterioration. 5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARINGS ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Sheila A. Lawson, Associate Counsel INTRODUCTION The veteran had active service from April 1951 to January 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In June 1992, the Board remanded the veteran's case for further development and adjudication, and to provide the veteran an opportunity to clarify the issues that he wished to include in his appeal. The Board instructed the RO that if the issues of entitlement to increased evaluations remained in appellate status, the veteran should be scheduled for VA surgical and gastrointestinal examinations. In August 1993, the veteran certified the following issues for appeal: entitlement to service connection for arthritis with bone deterioration (arthritis), entitlement to service connection for psychiatric disorder, and entitlement to increased evaluations for multiple lipomas with postoperative scars of the lumbar region, left forearm, neck, abdomen, chest and thighs (lipoma excision scars), for a postoperative appendectomy scar and for hepatitis. Further, the Board notes that in February 1993, the veteran underwent a VA surgical examination and refused to undergo an upper gastrointestinal series, a gallbladder series or a liver- spleen scan. In his September 1993 informal hearing presentation, the veteran's representative acknowledged the veteran's refusal to schedule the above-mentioned examinations, and requested that the Board provide the veteran another opportunity to schedule the examinations. The Board declines to do so. Although the Board must assist a veteran who has submitted evidence of a well- grounded claim, this duty to assist is not always a one-way street, and a veteran may not passively wait for assistance in those situations in which he may or should have information that is necessary in the development of his claims. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). In light of the veteran's failure to cooperate with the Board's efforts to assist him with the factual development of his claim for increased evaluation for hepatitis, no further effort will be expended to assist the veteran with this matter. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to service connection for arthritis and a psychiatric disorder on the grounds that he received psychiatric treatment during service, and that surgical removal of a lipoma from his back in 1952 resulted in his having been diagnosed with osteoarthritis in 1975, more than two decades following service. He further contends that he has submitted new and material evidence sufficient to reopen these claims. The veteran also argues that he is entitled to increased evaluations for service-connected lipoma excision scars, and for a postoperative appendectomy scar. He also asserts that he is entitled to an increased, compensable evaluation for hepatitis. The veteran claims that the assigned evaluations provide inadequate monetary compensation, and that these service- connected disabilities have caused him to develop a multitude of physical ailments. 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 files. After review of the relevant evidence in this matter, and for the following reasons and bases, the Board concludes that the preponderance of the evidence does not support the veteran's claims of entitlement to increased evaluations for lipoma excision scars, for a postoperative appendectomy scar and for hepatitis. The Board further concludes that with reference to the veteran's claims for service connection for arthritis and a psychiatric disorder, the evidence added to the record since the prior Board decisions is not new and material; therefore, the veteran's claims may not be reopened. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's lipoma excision scars are not tender, ulcerated or painful on objective demonstration, and are not productive of any functional limitation of the lumbar region, left forearm, neck, abdomen, chest or thighs. 3. The postoperative appendectomy scar is not tender, ulcerated or painful on objective demonstration, and is not productive of any functional limitation of veteran's right lower abdomen. 4. Demonstrable liver damage is not shown. 5. In March 1979, the Board denied the veteran's claim of entitlement to service connection for osteoarthritis. 6. The evidence added to record since that time includes evidence that is duplicative or cumulative of evidence previously of record and is not sufficiently relevant and probative, when viewed in conjunction with the evidence previously of record, to establish a reasonable possibility of a different outcome. 7. In an unappealed October 1985 rating decision, the RO confirmed and continued a previous denial of the veteran's claim of entitlement to service connection for psychiatric disability. 8. The evidence added to record since that time includes evidence that is duplicative or cumulative of evidence previously of record and is not sufficiently relevant and probative, when viewed in conjunction with the evidence previously of record, to establish a reasonable possibility of a different outcome. 9. No unusual or exceptional disability factors have been presented. CONCLUSIONS OF LAW 1. The criteria for an evaluation higher than 10 percent for lipoma excision scars have not been met. 38 U.S.C.A. § 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b), 4.118, Diagnostic Codes 7803, 7804, 7805 (1993). 2. The criteria for an increased, compensable evaluation for a postoperative appendectomy scar have not been met. 38 U.S.C.A. § 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b), 4.118, Diagnostic Codes 7803, 7804, 7805 (1993). 3. The criteria for an increased, compensable evaluation for hepatitis have not been met. 38 U.S.C.A. § 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b), 4.118, Diagnostic Codes 7803, 7804, 7805 (1993). 4. New and material evidence not having been submitted, the veteran's claim of entitlement to service connection for arthritis of the spine with bone degeneration may not be reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). 5. New and material evidence not having been submitted, the veteran's claim of entitlement to service connection for a psychiatric disorder may not be reopened. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran's claims for increased evaluations for service-connected lipoma excision scars, a postoperative appendectomy scar and hepatitis are plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); see Proscelle v. Derwinski, 2 Vet.App. 629 (1992) (a claim of entitlement to an increased evaluation of a service-connected disability generally is a well-grounded claim.) When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant evidence has been obtained regarding the veteran's claims for increased evaluations, and that no further assistance to the veteran with respect to these claims is required to comply with 38 U.S.C.A. § 5107(a). The veteran's service medical records show that he underwent an appendectomy in September 1951, and in December 1951, developed hepatitis as a result of plasma given to him at the time of the appendectomy. A November 1951 notation on the veteran's medical records reflects that his appendectomy scar was well healed. In March 1952, the veteran underwent surgical excision of a lipoma on his back. Apart from notations that the veteran underwent an appendectomy in 1951 and surgical excision of a lipoma in 1953, the veteran's January 1953 report of separation examination is negative for any abnormalities. In February 1993, pursuant to the Board's June 1992 remand, the veteran underwent VA surgical and alimentary appendages examinations. During the course of the examination pertaining to his service-connected scarring, the veteran reported no pain in the scars themselves but frequent stinging pain in lipomas of the upper extremities and abdomen. The examiner noted the presence of multiple well-healed scars up to 3 centimeters in length over the veteran's abdomen, anterior chest, left arm, and left forearm, a 6 centimeter scar above the left posterior iliac crest, of transverse scars over the left anterior thigh, measuring 6 and 7 centimeters, 3 and 6 centimeter scars over the right anterior thigh and a 4 centimeter scar over the posterior right thigh. The examiner further noted that the veteran's appendectomy scar was well healed and non-tender. The examiner reported that the veteran had encircled with ink the location of tumors over his trunk, arms and forearms. Upon examining the veteran, the examiner found that there were 22 small very firm subcutaneous nodules over the abdomen varying in diameter from 7 millimeters to 1 1/2 centimeters, 18 nodules over the left forearm, three nodules over the left arm, and 15 nodules over the right forearm. The examiner noted that the nodules were slightly tender and that rather than lipomas, the nodules were more like neurofibromas. The examiner determined that these nodules did not cause any limitation of motion, and that the scars the veteran had from previous excisions were not tender. At the conclusion of the examination, the veteran was diagnosed as having lipoma excision scars over the lumbar region, left forearm, abdomen, chest and thighs, all of which were non-tender and caused no limitation of motion of the joints, a non-tender, well-healed appendectomy scar, and probable neurofibromatosis. During the veteran's February 1993 alimentary examination, the veteran reported having vague stomach pain for an extended period of time, and being unable to eat particular kinds of food. He also complained of generalized abdominal pain and gas in the right upper and left lower quadrant areas of his abdomen, of generalized arthritis pain, particularly in the lower spine and hip areas, and of constipation. The examiner noted the veteran's refusal to schedule an upper gastrointestinal series, a gallbladder series and a liver-spleen scan. The examiner also noted that the veteran's hepatitis profile showed positive anti- hepatitis B surface antibodies, hepatitis A antibodies and anti- hepatitis B core antibodies, and diagnosed him as having hypothyroidism and positive hepatitis A and B, consisted of surface antibodies and hepatitis B core antibodies and hepatitis A antibodies. Medical records submitted following the Board's June 1992 remand consisted of records reflecting treatment for cardiac, thyroid, back, hip and wrist complaints, a May 1993 VA hospital report reflecting complaints of an irregular heart beat, chest pain, shortness of breath, and abdominal pain, as well as duplicates of treatment records dated in September 1992. I. Entitlement to evaluations higher than 10 percent for lipoma excision scars, and for a postoperative appendectomy scar and for a compensable evaluation for hepatitis. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 (injury cases) and 4.42 (1993) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of his lipoma excision scars, his postoperative appendectomy scars and the residuals of hepatitis, and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disabilities at issue. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1993). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.10 (1993). Under the provisions of the Rating Schedule, a superficial scar that is tender and painful on objective demonstration or one that is poorly nourished with repeated ulceration warrants a 10 percent evaluation under 38 C.F.R. § 4.118 Diagnostic Codes 7803, 7804 (1993), while other scars, apart from those received from burns or disfiguring scars of the head, face or neck, are evaluated according to the limitation of the function of the body part affected. Diagnostic Code 7805. Recent VA examination reflects no evidence of swelling, tenderness or ulceration of the veteran's lipoma excision scars, and no evidence of any limitation of motion of his lumbar region, left forearm, abdomen, chest and thighs as a result of these scars. With reference to the veteran's postoperative appendectomy scar, the Board points out that during the February 1993 VA examination, the examiner determined that the veteran's postoperative appendectomy scar was well healed and non tender. Although the veteran argues that higher evaluations are warranted for lipoma excision scars and for the postoperative appendectomy scar in view of recurrent development of lipomas, including development at the site of his appendectomy, the Board points out that his service-connected evaluations are for the scars themselves, not for lipomas. In light of the findings of the 1993 VA examination, and the veteran's not having submitted any medical evidence demonstrating that his lipoma excision scars or his postoperative appendectomy scars are tender, ulcerated or painful on objective demonstration, or that these scars adversely affect the function of his lumbar region, left forearm, abdomen, right lower quadrant, chest or thighs, the Board concludes that the preponderance of the evidence is against increased evaluations under Diagnostic Code 7805 for either the lipoma excision scars or the postoperative appendectomy scar. Moreover, the Board is otherwise unable to identify any exceptional or unusual circumstances warranting higher ratings on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1). Turning to the veteran's claim of entitlement to a compensable evaluation for hepatitis, Diagnostic Code 7345 the Rating Schedule provides that a 10 percent evaluation for infectious hepatitis is warranted with demonstrable liver damage with mild gastrointestinal disturbance. A noncompensable evaluation is warranted when the infectious hepatitis is healed and nonsymptomatic. Id. The Board is cognizant that during the February 1993 VA examination, the examiner noted that the veteran's hepatitis profile showed positive anti-hepatitis B surface antibodies, hepatitis A antibodies and anti-hepatitis B core antibodies, however, for a compensable evaluation for hepatitis, the regulations require evidence of demonstrable liver damage. Notwithstanding the numerous assertions of the veteran and his wife to the contrary, the record is entirely negative for any medical evidence demonstrating that the veteran has liver damage as a result of his inservice bout of hepatitis. Without such medical evidence, the veteran does not meet the criteria for a compensable evaluation. II. Whether new and material evidence has been submitted to reopen claim of entitlement to service connection for arthritis and for a psychiatric disorder. In order to reopen the previously denied claim, a veteran must submit new and material evidence; that is, evidence that is not merely cumulative of other evidence in the record, is relevant to and probative of the issue at hand, and is of sufficient weight to present a reasonable possibility that the new evidence, when viewed in conjunction with the old, would change the outcome. Sklar v. Brown, 5 Vet.App. 140, 145 (1993); Cox v. Brown, 5 Vet.App. 95, 98 (1993); Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). As indicated previously, the veteran's claims for service connection for arthritis and psychiatric disability were the subject of prior final VA decisions. The evidence that has been associated with the record since these decisions includes VA and private outpatient treatment records for multiple disabilities, lay statements by the veteran and his wife, and copies of his service medical records. At the outset, the Board points out that because duplicate records are considered cumulative, such evidence does not meet the requirement for "new" evidence. The Board notes that the medical evidence submitted in an effort to reopen the veteran's claims either is unrelated to disabilities presently before the Board, or reflects current complaints pertaining to the issues currently on appeal. Insofar as the evidence pertains to the claims in appellate status, it neither establishes that the veteran incurred arthritis or psychiatric disability during service or within one year thereafter, nor contains a medical opinion attributing these claimed disabilities to the veteran's military service. With reference to the veteran's claim of entitlement to service connection for arthritis, the Board notes that the record reflects that he first was diagnosed as having arthritis in 1975, more than two decades after his separation from service. The evidence added to the record since the prior final decision of the Board, while including treatment showing the veteran's complaints of back pain, as well as statements reflecting opinions of the veteran and his wife that his having had a lipoma removed from his back in 1953, caused him to develop arthritis more than 20 years hence, is entirely devoid of any competent medical evidence establishing a causal connection between the veteran's arthritis and his military service. Further, the evidence submitted is cumulative of evidence previously considered by the Board and is not of sufficient weight to present a reasonable possibility that the new evidence, when viewed in conjunction with the old, would change the outcome. Sklar, Cox, and Colvin, supra. With respect to the veteran's claimed psychiatric disorder, the Board points out that the record is devoid of any diagnosis that the veteran has a psychiatric disability. Moreover, apart from intermittent notations on medical records that the veteran suffers from anxiety and nervousness, the majority of the evidence submitted regarding this particular issue consists of numerous statements by the veteran and his wife that he has psychiatric disability. For the reasons set forth below, the lay opinions of the veteran and his wife regarding that he has psychiatric disability attributable to service, do not meet the criteria of new and material evidence. Without a medical opinion diagnosing the veteran as having psychiatric disability attributable to service, the evidence submitted in an effort to reopen the veteran's claim for service connection for psychiatric disability may not be considered material, and his claim is not reopened. Further, the Board notes that the veteran and his spouse have persisted in inundating VA with letters in which they express their opinions regarding the nature, extent and etiology of the veteran's numerous physical ailments and handwritten notations, on VA documents provided to the veteran during the course of his appeals, in which the veteran and his wife disagree with the findings therein and suggest that VA has falsified documents and has withheld evidence favorable to the veteran. As lay persons, neither the veteran nor his spouse is competent to offer evidence that requires medical knowledge, such as the diagnosis of a medical condition or the cause of a disability. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 495. As such, the numerous statements of the veteran and his wife reflecting their opinions on medical matters may not be considered material for purposes of reopening his claims of entitlement to service connection for arthritis and psychiatric disability. See Moray v. Brown, 5 Vet.App. 211, 214 (1993). Further, their criticism of VA personnel, medical and otherwise, is not new, nor is it relevant to the issues of whether the veteran incurred arthritis and psychiatric disability in service or within one year thereafter, and thus is not material. ORDER 1. Entitlement to an evaluation higher than 10 percent for lipoma excision scars is denied. 2. Entitlement to an increased evaluation higher than 10 percent for a postoperative appendectomy scar is denied. 3. Entitlement to a compensable evaluation for hepatitis is denied. 4. New and material evidence not having been submitted, the claim of entitlement to service connection for arthritis with bone deterioration is not reopened. 5. New and material evidence not having been submitted, the claim of entitlement to service connection for a psychiatric disorder is not reopened. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.