Citation Nr: 0006199 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 98-05 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include major depression. 2. Entitlement to service connection for functional bowel syndrome. 3. Entitlement to an increased rating for the residuals of a right wrist ganglionectomy, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Elizabeth Gallagher, Counsel INTRODUCTION The veteran had active service from April 1971 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The veteran appeared at a personal hearing before a Hearing Officer at the RO in May 1998. FINDINGS OF FACT 1. All relevant evidence necessary to an equitable disposition of this appeal has been obtained by the RO. 2. The veteran experienced an episode of situational anxiety and depression in service, which resolved without apparent residuals. 3. The next medical evidence contained in the claims file showing treatment for depression dates from March 1998, some twenty-six years after the veteran's separation from service. 4. No competent medical evidence has been presented to show that the veteran's current depression is causally related to the acute episode of situational anxiety and depression he experienced in service. 5. During his active service, the veteran reported a pre- service history of stomach problems, and experienced an episode of functional bowel syndrome which resolved without apparent residuals by the time of his service separation examination. 6. No medical evidence has been presented to show that the veteran currently has a chronic stomach or intestinal disorder, including functional bowel syndrome. 7. The residuals of a right wrist ganglionectomy are manifested by subjective complaints of pain and numbness, and objective findings of a well-healed surgical scar, some tenderness over the radial carpal joint at the level of the scar but with a negative Tinel's sign at that site, flexion and extension equal bilaterally, a mildly positive elbow flexion test, normal grip strength, and normal X-ray findings. 8. The veteran has a scar on his right wrist which causes pain. CONCLUSIONS OF LAW 1. A well-grounded claim for service connection for an acquired psychiatric disorder, to include major depression, has not been submitted. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. A well-grounded claim for service connection for functional bowel syndrome has not been submitted. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for a rating greater than 30 percent for the residuals of a right wrist ganglionectomy have not been met or approximated. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.124a, Diagnostic Code 8515 (1999). 4. The criteria for a separate evaluation for a scar of the right wrist have been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. Part 4, Diagnostic Code 7804 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Claims Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1110, 1131 (West 1991); 38 C.F.R. § 3.303. The United States Court of Appeals for Veterans Claims (formerly called the United States Court of Veterans Appeals) has determined "that establishing service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and [service]." (emphasis added) Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under 38 U.S.C.A. § 5107(a), a veteran has an initial burden to produce evidence that a claim is well-grounded or plausible. See Grottveit v. Brown, 5 Vet. App. 91, 92 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992). Where an 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 Cartright v. Derwinski, 2 Vet. App. 24 (1991). However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that a claim is "plausible" or "possible" is required. See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A claimant would not meet this burden imposed by section 5107(a) merely by presenting lay testimony, because lay persons are not considered competent to offer medical opinions. See 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. The veteran asserts that he developed chronic functional bowel syndrome and depression during his active military service. Thus, he asserts he is entitled to service connection for those disabilities. No problems with depression or bowel syndrome were complained of or noted during the veteran's service entrance examination. In May 1971, he requested that he be given medication for his nerves. In July 1971, he complained of nausea and vomiting. Gastroenteritis was suspected. Gastritis and epistaxis were found in August 1971. In October 1971, the veteran reported a pre-service history of duodenal ulcer disease which he stated had been diagnosed by X-ray by his private physician. He complained that he had experienced abdominal pains on and off since his entry into active service. The impression was probable peptic ulcer disease. It was noted that the veteran was very upset that his spouse was leaving him after having accused him of beating her and her 8 month old child by another man. The impression was that the veteran had a personality disorder with hostility and weak impulse control. Later in October 1971, the veteran continued to complain of abdominal pains. The impression was intestinal lymphadenitis, abdominal pain with some functional overlay. In December 1971, the veteran took an overdose of prescription medication in what was an apparent suicidal gesture. He reported that he was upset following a court hearing concerning his divorce. The diagnosis was acute situational reaction manifested by transient depression, suicidal gesture, and some inability to accept his divorce from his wife. The examiner who conducted the veteran's service separation examination noted a past history of a diagnosis of functional bowel syndrome at a private hospital, but made no findings of a current stomach or intestinal problem. It was noted that the veteran had been diagnosed with situational anxiety and depression. In June 1972, the RO denied service connection for conversion reaction and anxiety, stating that the veteran's situational anxiety and depression in service had been acute and transitory. The RO received a report of the veteran's October 1971 hospitalization at St. Mary's Hospital, in Duluth, Minnesota. The veteran complained of abdominal pains and bowel problems. He reported having a history of abdominal pains and discomfort unrelated to exertion or food since age 14. It was noted that his symptoms had increased concurrent with his recent emotional and domestic problems. The diagnosis was functional bowel syndrome, possible drug overdose, and hyperuricemia. The RO also received a report of the veteran's November 1971 hospitalization at St. Luke's Hospital, in Duluth, Minnesota. It was noted that the veteran was experiencing increased depression due to his divorce and his wife's apparent infidelity. The diagnosis was drug overdose and reactive depression. Records received from Robert A. Brewer, M.D. and the Memorial Hospital, of Logansport, Indiana, showed that, in April 1986, a test of the veteran's upper gastrointestinal tract revealed no significant intrinsic abnormality. In March 1998, the RO denied the veteran's claims of service connection for functional bowel syndrome and an acquired psychiatric disorder, to include major depression. The veteran filed a notice of disagreement and appealed from that decision. In his April 1998 substantive appeal, the veteran asserted that he sometimes got symptoms of dumping syndrome, and at other times he got knots and pain in his stomach. He asserted that while in service he tried to kill himself twice because his spouse told him she had carried on an affair with his commanding officer, who had gotten her pregnant. In support of his claim, the veteran submitted a letter from a VA Registered Nurse. The nurse stated that she had treated the veteran on four occasions between March and May 1998 for depression related to his chronic medical disorder. She reported that his symptoms of depression had increased over the past year. The veteran appeared at a personal hearing before a Hearing Officer at the RO in May 1998. He testified that he was treated in service for transient depression and that his next real treatment for depression was in 1998. He reported that the VA nurse he saw indicated to him that his current depression was related to the depression he had in service. He also reported that he had not taken his service medical records with him to show the VA nurse. He testified that a Dr. Montgomery gave him some medications, of unknown type, in 1978 or 1980, for his depression. He stated that he had never had to undergo any mental examinations in connection with his post-service employment. With regard to his gastrointestinal complaints, he stated that while in service he experienced nausea, and sweats and chills after eating, and would have to rush to the restroom. He reported that those symptoms continued after service and that he took Pepcid, Alka Seltzer, Pepto Bismol and Maalox for the problem. He stated that he had not consulted with a doctor about his gastrointestinal problem after he was discharged from service, but stated that a Dr. Baugh [presumably he meant Dr. "Bao"] and doctors at the VA Medical Center gave him what he believed was Pepcid for his disorder. He further stated that those doctors did not relate his gastrointestinal problems to his active military service. The RO received a letter dated in March 1998 from Danny C. Bao, M.D., of Kokomo, Indiana, which addressed the veteran's right wrist disorder but made no mention of his depression or gastrointestinal disorder. The RO also received treatment records from James Montgomery, M.D., of Logansport, Indiana, covering the period from June 1994 through September 1997. Those records addressed the veteran's severe spinal disorder, inter alia, but did not mention depression or any gastrointestinal disorder. The veteran submitted a June 1998 letter from the VA Registered Nurse who treated him earlier that year. She stated that the veteran was currently being treated in the Psychiatric Ambulatory Care Clinic. She further stated that he had been treated for depression since 1970. Upon consideration of all the evidence of record, the Board finds that the veteran has failed to carry his burden of presenting sufficient evidence to justify a belief by a fair and impartial individual that he has submitted well-grounded claims for service connection for an acquired psychiatric disorder, to include major depression, and for functional bowel syndrome. The veteran asserts that he has such disabilities and that they are causally related to his active service. However, while he is certainly capable of providing evidence of symptomatology, as a layperson he is not considered legally capable of opining on matters requiring medical knowledge, such as the degree of disability produced by the symptoms or the condition causing the symptoms. See Robinette v. Brown, 8 Vet. App. 69, 74 (1995); Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Espiritu, 2 Vet. App. at 494 (1992). See also Harvey v. Brown, 6 Vet. App. 390, 393- 94 (1994). The available medical evidence shows that at the time of his separation from active service he did not have a chronic psychiatric disorder or any gastrointestinal disorder. The next medical evidence of treatment for depression dates from 1998, some twenty-six years after his separation from service. Although the VA Registered Nurse's June 1998 letter indicates that the veteran had been treated for depression since 1970, it appears she had not reviewed the veteran's service or post-service medical records, and was relying on the oral history provided by the veteran himself. The Board is not required to accept medical opinions that are based upon the veteran's recitation of his medical history. Godfrey v. Brown, 8 Vet. App. 113, 121 (1995); see Owens v. Brown, 7 Vet. App. 429 (1995) (Board not bound to accept physicians' opinions based on claimant's recitation of events); Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (rejecting medical opinion as "immaterial" where there was no indication that the physician reviewed claimant's service medical records or any other relevant documents which would have enabled him to form an opinion on service connection on an independent basis); Swann v. Brown, 5 Vet. App. 229 (1993) (holding that the BVA was not required to accept the medical opinions of two doctors who rendered diagnoses of post- traumatic stress disorder almost 20 years after claimant's separation from service and who relied on history as related by the appellant as the basis for those diagnoses); Heuer v. Brown, 7 Vet. App. 379, 386-87 (1995) (to demonstrate entitlement to service connection for hearing loss, there must be medical evidence indicating a nexus to service, and where the condition was noted during service, continued symptomatology can aid in establishing service connection). Thus, no cognizable medical evidence has been presented to show that the veteran's current psychiatric problem is causally related to the acute episode of situational anxiety and depression he experienced in service, or is otherwise related to his active military service. Thus, the veteran's claim may not be considered well-grounded. 38 U.S.C.A. § 5107(a). As to the veteran's claim for service connection for functional bowel syndrome, while his service medical records show that he had an apparently acute and transitory episode of that disorder in 1971 in service, no finding was made of any stomach or intestinal disorder by the examiner who conducted the veteran's service separation examination. Further, no medical evidence has been presented to show that he currently has a chronic stomach or intestinal disability, such as functional bowel syndrome. As noted above, in order to receive service connection for a particular disability, the veteran must first establish that he currently has that disability, and that it is causally related to his active service. See generally Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Thus, the veteran has not submitted any medical opinion or other medical evidence which supports his claim for service connection for functional bowel syndrome disability. Therefore, that claim may not be considered well-grounded. 38 U.S.C.A. § 5107(a). Since the veteran's claims for these disabilities are not well-grounded, they must be denied. See Edenfield v. Brown, 8 Vet. App. 384, 390 (1995). As the foregoing explains the need for competent medical evidence showing that the veteran currently has functional bowel syndrome, and showing a causal relationship between the veteran's claimed functional bowel syndrome, as well as his psychiatric disorder, and his active military service, the Board views its discussion above as sufficient to inform the veteran of the elements necessary to complete his application for service connection for those disabilities. Robinette v. Brown, 8 Vet. App. 69 (1995). II. Residuals of Right Wrist Ganglionectomy Initially, the Board notes that the veteran's claim is well- grounded within the meaning of 38 U.S.C.A. § 5107 and that all relevant facts have been properly developed for this appeal. The VA determines disability evaluations through a schedule of ratings, which is based on the average impairment of earning capacity resulting from specific service-connected disabilities. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155. Where functional loss is alleged to be due to pain on motion, the provisions of 38 C.F.R. §§ 4.40, 4.45 must also be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-8 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet.App. 55 (1994). But see Fenderson v. West, 12 Vet.App. 119 (1999). Accordingly, the Board will only briefly address the past history of this disability, while emphasizing the present level of symptomatology. The Board notes that the veteran has complained of pain in the site of the scar from his surgery. Under current precedent, the Board must consider assigning separate evaluations for any distinct and separate symptomatology present; and such consideration should include the assignment of a separate evaluation for a scar. See Esteban v. Brown, 6 Vet. App. 259 (1994). Therefore, the Board will address these claims individually under separate rating provisions. The residuals of a ganglionectomy of the right wrist was initially evaluated as 10 percent disabling under Diagnostic Code 8515, effective from February 17, 1972, the date after the veteran's separation from service. By rating decision in May 1998, the disability rating was increased to 30 percent, effective from July 28, 1997, the date of receipt of the veteran's claim for an increased rating. Diagnostic Code 8515 provides disability evaluations for damage to the median nerve, based upon the degree of severity of paralysis of that nerve. Where the paralysis is incomplete, ratings of 10, 20, and 40 percent are assignable for mild, moderate, or severe symptoms respectively in the minor (non-dominant) hand. Ratings of 10, 30, and 50 are assignable for mild, moderate, or severe symptoms respectively, when the incomplete paralysis is in the major (dominant) hand. Where the paralysis is complete, with symptoms such as inclination of the hand to the ulnar side, the index and middle fingers extended more than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); incomplete and defective pronation, absence of flexion of the index finger and feeble flexion of the middle finger, inability to make a fist, index and middle fingers remaining extended; inability to flex the distal phalanx of the thumb, defective opposition and abduction of the thumb at right angles to the palm; weakened flexion of the wrist; and pain with trophic disturbances, a 60 percent rating is assignable for the minor hand, and a 70 percent rating is assignable for the major hand. 38 C.F.R. § 4.124a, Code 8515. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. 4.124a. Because the veteran's service-connected right wrist disability involves a nerve disability and not a musculoskeletal disability, DeLuca v. Brown, 8 Vet. App. 202 (1995), and the provisions of 38 C.F.R. 4.40, 4.45 (1999), are not applicable to this case. Treatment records have been received from Robert A. Brewer, M.D. and the Memorial Hospital, of Logansport, Indiana, covering the period from December 1982 through February 1998. In December 1982, nerve conduction and sensory studies showed no evidence of medial or ulnar nerve entrapment. In December 1985, it was noted that there was minimal Tinel's sign seen in the dorsal aspect of the right wrist and otherwise the strength was grossly intact. An electromyograph (EMG) showed radial nerve neuropathic changes. The report of the veteran's January 1986 VA examination noted that in 1971 a ganglion was removed from the dorsal aspect of his right, dominant, wrist. It was further noted that there was a transverse 1 1/8 inch by 1/8th inch scar at the surgical site. An area of numbness was noted on the back of the right hand from the third metacarpal including the area overlying the 4th and 5th metacarpal bones. The wrist was found to be able to dorsiflex to 50 degrees, palmar flex to 40 degrees, deviate to the ulnar side to 30 degrees, and deviate to the radial side to 15 degrees. The grip strength of the right hand was found to be less than that of the left. The veteran complained that the back of his hand tingled. The diagnosis was slightly noticeable scar, and neuropathy of the right hand, both secondary to removal of a ganglion. In July 1997, the veteran was treated at the Logansport Memorial Hospital, in Logansport, Indiana. He presented with complaints of a four-day history of right wrist pain with motion. It was noted that the right elbow had full range of motion without pain. Some tenderness was noted over the distal radius. No tenderness was noted over the actual wrist joint itself or the anatomic snuffbox. The grip strength, sensation and refill to the fingers on the right hand were all found to be within normal limits. It was noted that there was pain to the wrist with movement of the hand. X-ray studies were normal. The diagnosis was probable tendinitis of the right wrist. A cock-up splint and Motrin were prescribed. The veteran submitted documents from the Social Security Administration showing that in October 1997 he was found to have been disabled since November 25, 1995. Among the disorders he was found to have were right arm and hand problems, including tremors of the right arm, and a history of carpal tunnel surgery. The reports of the veteran's October 1997 VA joints and neurological disorders examinations noted that he complained of pain in his wrist and numbness in his hand. He reported that he occasionally dropped things due to numbness in his right hand. He also reported a two year history of severe tremors in his right hand and right foot when writing. The examiner found that there was a well-healed ganglionectomy scar, with no Tinel's sign over the scar. There was some tenderness over the radial carpal joint. The wrist was found to extend to 45 degrees and flex to 55 degrees, which was equal to his contralateral wrist. The veteran had normal grip strength bilaterally, and a mildly positive elbow flexion test. Phalen's test and X-ray study results were negative. The orthopedic examiner found that the veteran had chronic wrist pain following removal of a dorsal carpal ganglion. That examiner opined that it was possible that a branch of the posterior interosseous nerve might be entrapped in the scar, causing some of the veteran's pain. The neurologic examiner found that the veteran's wrist pain was musculoskeletal in origin and stated that there was no evidence of carpal tunnel syndrome. The veteran underwent nerve conduction studies on both his upper extremities at a VA medical facility in January and February 1998. The conclusion was that the findings were consistent with mixed peripheral polyneuropathy, sensory more than motor, and demyelinating more than axonal, bilaterally. A letter dated in March 1998 was received from Danny C. Bao, M.D., of Kokomo, Indiana. Dr. Bao stated that an October 1996 EMG showed evidence of early carpal tunnel syndrome and ulnar nerve entrapment in the right upper extremity. As of that point it was determined that surgical intervention was not necessary. The veteran appeared at a personal hearing in May 1998. He testified that he had numbness and tingling in his right hand and wrist. He reported that he had to use special utensils in order to eat, and that he used other assistive devices such as a buttonhook, special shoe strings, a zipper helper, a bath rail and a shower chair. He further reported that he had trouble grasping objects and sometimes dropped them. He stated the numbness in his hand and wrist was caused by moving the wrist. He also stated that he got periodic swelling in the wrist which lasted about one week. He reported that he experienced pain which started in the wrist and extended out toward the fingertips. He evaluated that pain as, on average, being a 6 on a scale of from 1 to 10. He stated the pain increased as the day went on. The record reflects that the veteran's upper right extremity is his major upper extremity. Upon consideration of all the evidence of record, the Board finds that the veteran's symptoms which are attributable solely to the residuals of a right wrist ganglionectomy are no more than moderate in severity. 38 C.F.R. § 4.124a, Diagnostic Code 8515. On objective testing, the veteran has been found to have good range of motion and strength in his right wrist and hand. The problems due to the ganglionectomy scar appear largely sensory in nature. Therefore, the Board finds that the 30 percent disability rating assigned for that disability is appropriate and should not be increased at this time. The Board notes that the veteran appears to have additional problems with both his right and left hand and wrist such as possible carpal tunnel syndrome, and mixed peripheral polyneuropathy. However, the symptoms attributable to those disorders are not compensable, as they are not service- connected. The Board considered whether a higher disability rating might be assignable under some other Diagnostic Code, but determined that Diagnostic Code 8515 was the most appropriate Diagnostic Code under which to rate this disability. In this regard, it is noted that a 10 percent evaluation is warranted for limitation of wrist motion with dorsiflexion less than 15 degrees or palmar flexion limited in line with forearm; no higher evaluation is provided for limitation of motion of the wrist. 38 C.F.R. 4.71a, Diagnostic Code 5215 (1999). In reaching its decision on this issue, the Board has considered the complete history of the disability in question as well as current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.16 (1999). The nature of the original surgery has been reviewed, and the functional impairment which can be attributed to pain, fatigability, incoordination, or weakness has been taken into account. Turning to the separate evaluation of the veteran's scar associated with his right wrist, under the regulations a 10 percent rating is warranted for superficial scars that are tender and painful upon objective demonstration. 38 C.F.R. § 4.118 (1999), Diagnostic Code 7804. The above evidence shows that a VA examiner has indicated that the veteran's scar may be causing pain due to a nerve entrapped in the scar. Weighing this evidence, and giving the veteran the benefit of all reasonable doubt arising therefrom, the Board finds that the evidence satisfies the criteria for a compensable rating for a painful scar. Consequently, having met the requirements for a compensable rating, under the dictates established in Esteban, the Board grants the veteran a separate 10 percent rating for a scar due to his service- connected right wrist disability. As a 10 percent rating is the only one available, no discussion of the applicability of the next highest rating is required. The Board has considered whether a higher extra-schedular rating should be assigned, but has determined that as this case does not present an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, an extra- schedular evaluation would not be appropriate. See 38 C.F.R. § 3.321(b) (1999). ORDER As well-grounded claims for service connection for major depression, and functional bowel syndrome, have not been submitted, the appeal is denied. Entitlement to a disability rating higher than 30 percent for the residuals of a right wrist ganglionectomy is denied. A 10 percent rating for a scar due to service-connected right wrist ganglionectomy is granted, subject to the laws and regulations governing the disbursement of monetary benefits. NADINE W. BENJAMIN Acting Member, Board of Veterans' Appeals