Citation Nr: 0004681 Decision Date: 02/23/00 Archive Date: 02/28/00 DOCKET NO. 98-13 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for a skin rash on the upper arm. 2. Entitlement to service connection for recurrent neck pain. 3. Entitlement to service connection for recurrent back pain. 4. Entitlement to service connection for temporomandibular joint (TMJ) syndrome. 5. Entitlement to service connection for headaches. 6. Entitlement to a compensable disability rating for tinnitus. 7. Entitlement to a disability rating greater than 10 percent for status post trauma to the chin with residual scarring and multiple surgical interventions for scar repair and reduction. REPRESENTATION Appellant represented by: John Stevens Berry, Attorney ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from June 1986 to June 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board notes that, in the January 1996 rating decision. The RO granted service connection for a fracture of tooth #14 and assigned a 0 percent disability rating. Service connection for speech impairment was also denied at that time. Correspondence received in March 1997, which would otherwise been accepted as a notice of disagreement, was received more than one year after the issuance of the rating decision. Accordingly, those issues are not currently before the Board. The Board emphasizes that the RO did not at any time consider these issues to be in appellate status. FINDINGS OF FACT 1. The evidence of record reveals the presence of a skin disorder on the left upper arm in service with continuity of symptomatology after service. 2. There is no competent medical evidence of a nexus between the alleged recurrent neck pain and the veteran's period of active military service. 3. There is no competent medical evidence of a nexus between the alleged recurrent back pain and the veteran's period of active military service. 4. The RO advised the veteran of its denial of service connection for TMJ syndrome and headaches on September 17, 1997. The veteran submitted a notice of disagreement in September 1997. The RO issued a statement of the case in January 1998. The RO received the veteran's substantive appeal on May 10, 1999. 5. The RO granted service connection for tinnitus and assigned a 0 percent rating in a rating decision issued on April 3, 1998. The RO received a notice of disagreement in May 1998 and issued a statement of the case in June 1998. The RO received the veteran's substantive appeal on May 10, 1999. 6. The scar on the veteran's chin is pink in color and measures 1.5 inches by 0.5 inch. The scar is elevated 3/8th of an inch above the surrounding skin and is thick in texture. There is no adherence to the underlying structures, no underlying tissue loss, no ulceration, and no loss of function due to the scar. 6. No complex or controversial medical question has been presented in this case. CONCLUSIONS OF LAW 1. A skin rash on the left upper arm was incurred during active military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1998). 2. The veteran's claim of entitlement to service connection for recurrent neck pain is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1998). 3. The veteran's claim of entitlement to service connection for recurrent back pain is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1998). 4. A timely appeal was not filed with respect to the issue of service connection for TMJ syndrome. 38 U.S.C.A. § 7105(a) and (d)(3) (West 1991); 38 C.F.R. §§ 20.200, 20.302(b), 20.303, 20.304 (1999). 5. A timely appeal was not filed with respect to the issue of service connection for headaches. 38 U.S.C.A. § 7105(a) and (d)(3) (West 1991); 38 C.F.R. §§ 20.200, 20.302(b), 20.303, 20.304 (1999). 6. A timely appeal was not filed with respect to the issue of a compensable disability rating for tinnitus. 38 U.S.C.A. § 7105(a) and (d)(3) (West 1991); 38 C.F.R. §§ 20.200, 20.302(b), 20.303, 20.304 (1999). 7. The criteria for a disability rating greater than 10 percent for status post trauma to the chin with residual scarring and multiple surgical interventions for scar repair and reduction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.20, 4.21, 4.118, Diagnostic Code 7800 (1998). 8. An opinion from an independent medical expert is not warranted. 38 U.S.C.A. § 7109 (West 1991); 38 C.F.R. §§ 20.901, 20.902 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Claims Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1998). Service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494- 97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. 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." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establish that the disorder was incurred in-service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). However, a person claiming VA benefits must meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well grounded is plausible, meritorious on its own, or capable of substantiation. Murphy, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). For purposes of determining whether a claim is well grounded, the Board presumes the truthfulness of the supporting evidence. Arms v. West, 12 Vet. App. 188, 193 (1999); Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well grounded, there must be competent evidence of a 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). Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza, 7 Vet. App. 498, 504 (1995). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). 1. Skin Rash on the Upper Arm As a preliminary matter, the Board finds that the veteran's claim is well grounded. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102. See Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Service medical records do not show any skin disorder present at entrance to service. The evidence of record includes an April 1995 Occupational Health Evaluation, when the veteran reported a recurring rash on the upper left arm, diagnosed as some type of heat rash or ringworm. June 1995 progress notes show that the veteran complained of a rash on the left arm for weeks. Mycelex did not help. The diagnosis was nummular eczema. This diagnosis is also reflected on the June 1995 report of the separation examination. Although the October 1995 VA examination report is negative for a skin disorder, VA outpatient medical records dated in 1995 and 1996 show a diagnosis of suspected chronic fungal skin infection, tinea, affecting the left axilla. Notes indicate that the disorder had been present since service. Thus, the evidence of record shows the presence of a skin disorder on the left arm in service with continuity of symptomatology after service. Resolving doubt in the veteran's favor, the Board finds that the evidence supports service connection for a skin rash on the upper arm. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. Recurrent Neck Pain and Back Pain The veteran asserts that he experienced recurrent neck and back pain in service. For purposes of determining whether these claims are well grounded, the Board presumes the truthfulness of this assertion. Arms, 12 Vet. App. at 193; Robinette, 8 Vet. App. at 75; King, 5 Vet. App. at 21. In any event, the Board finds that the veteran's claim for recurrent neck pain and recurrent back pain is not well grounded. The October 1995 VA examination report fails to reveal any diagnosis of a chronic neck or back disorder. In addition, there is no other VA or private medical evidence establishing a diagnosis of a chronic neck or back disorder. A claim is not well grounded if there is no present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, when there is no diagnosis of a chronic disorder, there necessarily can be no competent medical evidence of a nexus between the disorder and service. Epps, 126 F.3d at 1468. Under these circumstances, the Board finds that the veteran has not submitted a well grounded claim for service connection for recurrent neck pain and recurrent back pain. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Epps, 126 F.3d at 1468. Therefore, the duty to assist is not triggered and VA has no obligation to further develop the veteran's claim. Morton v. West, 12 Vet. App. 477, 486 (1999); Epps, 126 F.3d at 1469; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). If the veteran wishes to complete his application for service connection for recurrent neck pain and recurrent back pain, he should submit competent medical evidence showing a current diagnosis of a chronic disorder for each claimed condition and establishing a relationship between each disorder and service. 38 U.S.C.A. § 5103(a); Robinette, 8 Vet. App. at 77-80. The Board observes that the veteran seeks entitlement to an advisory medical opinion and challenges the adequacy of the VA examinations performed. The Board notes that request for an advisory medical opinion did not reference to any one specific claim. Regarding the claims for recurrent neck and back pain, since they are not well grounded, VA has no duty to assist the veteran in developing them. Epps, 126 F.3d at 1469; Morton, 12 Vet. App. at 486. "Where there is a well-grounded claim", but medical evidence accompanying the claim is not adequate for rating purposes, a VA examination will be authorized." 38 C.F.R. § 3.326(a) (emphasis added). In any case, the Board observes that the veteran has asserted little to support his contentions that the examinations of record were inadequate. Specifically, the veteran has cited no authority for the assertion that a VA examination by a physician's assistant is ipso facto inadequate. Moreover, determinations regarding the weight and credibility of evidence are inapplicable at the well grounded stage of adjudication. Wandel v. West, 11 Vet. App. 200, 206 (1998). The discrediting of evidence contrary to the grant of service connection does not serve as evidence that supports service connection. Id. In addition, the veteran claims that the VA examiner was required to offer an opinion as to the etiology of the claimed disorders. However, since such a medical opinion is one of the requirements of a well grounded claim that must be satisfied by the veteran before a duty to assist is triggered, a VA examiner is not required to offer such an opinion in this case. Finally, the Board observes that, although he has requested additional examinations, the veteran apparently canceled three VA examinations scheduled in early 1997, and failed to report for VA examinations scheduled in July 1997 and August 1998. Any evidence expected from these examinations that might have been material to the outcome of these claims therefore could not be considered. Since the foregoing claims are implausible, and since they present no complex or controversial medical question, there is no need for an independent medical opinion. The Board further finds that neither the veteran nor his representative has presented adequate reasons in sufficient detail for requesting such an opinion with respect to the foregoing service-connection claims. It is not adequate for an appellant to make a mere allegation that an independent medical opinion is warranted. See 38 C.F.R. § 3.328(b). Increased Rating for Scar on the Chin When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Accordingly, the Board finds that the veteran's claim for an increased rating is well grounded. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102. The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Factual Background Service medical records reveal that the veteran initially suffered a trauma to the chin in July 1987. Notes dated in October 1987 revealed the presence of a cystic lesion. The veteran underwent surgical excision of the lesion in November 1987. Procedure notes specified that the lesion was located on the mid portion of the lower lip. In March 1995, the veteran complained of a "lump" on the chin since the trauma in 1987. Examination revealed a soft, rubbery, deep dermal or subcutaneous nodule. Dental records dated in May 1995 showed that an exploratory intraoral incision revealed fibro- fatty tissue. During the October 1995 VA examination, the veteran complained of hypersensitivity on the right side of the lower lip and chin after the second procedure was performed in service. The scarred area used to be quite soft, but was now firm. Examination was significant for a linear scar measuring approximately two centimeters (cm) to the left side of the midline on the chin. There was a slight, nearly circular protrusion of the flesh of the chin just medial to the scar that was most noticeable when the veteran extended the jaw and grimaced. Inside the oral cavity, there was a three cm, well healed scar to the inferior margin of the vestibule with no keloid formation. The diagnosis was status post trauma to the chin with residual scarring and multiple surgical interventions for scar reduction and repair. The examiner commented that there did not appear to be any limitation of function of the area affected by the scarring. The examination report was accompanied by photographs of the area in question. VA outpatient medical records were negative for complaints or findings related to the scarring on the chin. The veteran was afforded another VA examination in January 1998. He indicated that he had occasional aching and swelling of the scar, as well as occasional redness when rubbed. Examination revealed a scar on the chin, pink in color and measuring 1.5 inches by 0.5 inch. The scar was elevated 3/8th of an inch above the surrounding skin. The texture was thick and the area was swollen and edematous. There was no adherence to the underlying structures, no underlying tissue loss, and no ulceration. There was no loss of function due to the scar. The diagnosis was thick scar located on the chin. The veteran cancelled three VA examinations scheduled in early 1997, and failed to report for VA examinations scheduled in July 1997 and August 1998. Therefore, any evidence expected from these examinations that might have been material to this claim could not be considered. Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If a veteran has an unlisted disability, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20; see 38 C.F.R. § 4.27 (providing specific means of listing diagnostic code for unlisted disease or injury). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board observes that, in a claim of disagreement with the initial rating assigned following a grant of service connection, as is the situation in this case, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35, 38 (1993) (on a claim for an original or an increased rating, it is presumed that the veteran seeks the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy when less than the maximum available benefit is awarded). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The disability at issue is characterized as status post trauma to the chin with residual scarring and multiple surgeries for scar repair and reduction. The disability is rated as 10 percent disabling under Diagnostic Code (Code) 7800, disfiguring scars of the head, face, or neck. 38 C.F.R. § 4.118. A 10 percent rating is awarded when scars are moderate and disfiguring. A 30 percent rating is in order when the scars are severe, especially if they produce a marked and unsightly deformity of the eyelids, lips, or auricles. The veteran suggests that the disability should be rated under a different diagnostic code. When considering the evidence of record, the Board does not find any diagnosed disability other than scarring shown to be related to the in- service chin trauma. Therefore, the most appropriate diagnostic code for rating the service connected disability is Code 7800. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). The Board acknowledges that the veteran has separately sought service connection for disorders claimed secondary to the disability resulting from the chin trauma. These issues are not currently in appellate status. Upon a review of the record, the Board finds that the preponderance of the evidence is against a disability rating greater than 10 percent for residuals scarring of the chin. The examiners' descriptions of the scarring and the photographs of the area support a finding of moderate scarring with disfigurement. The evidence fails to reveal severe scarring or marked and unsightly deformity of the eyelids, lips, or auricles to warrant a 30 percent rating. 38 C.F.R. § 4.7. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to a disability rating greater than 10 percent for scarring on the chin. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, Code 7800. The veteran has generally requested an advisory medical opinion and has challenged the adequacy of the VA examinations. However, as discussed above, the veteran has provided little support for his challenge to the VA examination and has done no more than assert that an independent medical examination is warranted. Finally, the Board emphasizes that the veteran cancelled or failed to report for multiple examinations. Although VA has a duty to assist the veteran to develop facts pertinent to his claim, such duty to assist is not a one-way street, and the veteran cannot remain passive when he has relevant information. See Wamhoff v. Brown, 8 Vet. App. 517 (1996) (VA has duty to assist the veteran, not a duty to prove his claim while the veteran remains passive); accord Wood v. Derwinski, 1 Vet. App. 190 (1991). Other Issues The veteran also seeks service connection for TMJ syndrome and headaches, as well as a compensable disability rating for tinnitus. Appellate review is initiated by a notice of disagreement and completed substantive appeal after a statement of the case has been furnished. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. Either the claimant or his duly appointed representative may submit a notice of disagreement or a substantive appeal. 38 U.S.C.A. § 7105(b)(2); 38 C.F.R. § 20.301(a). A notice of disagreement is a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. 38 U.S.C.A. § 7015(b)(2); 38 C.F.R. § 20.201. A substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals," or correspondence containing the necessary information. If the statement of the case and any prior supplemental statements of the case addressed several issues, the Substantive Appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.202. Generally, a notice of disagreement is timely if it is received within one year from the date of notification of the decision. 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302(a). A substantive appeal is timely if it is received within one year of the date the veteran was notified of the denial of his claim, or within 60 days after the statement of the case was issued, whichever period is later. 38 U.S.C.A. § 7105(d)(3); 38 U.S.C.A. § 20.302(b). The 60-day period may be extended for a reasonable period on request for good cause shown. 38 U.S.C.A. § 7105(d)(3). A request for such an extension must be in writing and must be made prior to expiration of the time limit for filing. 38 C.F.R. § 20.303. In this case, the RO granted service connection for tinnitus and assigned a 0 percent disability rating in a rating decision issued on April 3, 1998. The RO received a notice of disagreement in May 1998 and issued a statement of the case in June 1998. The RO received the veteran's appeal on May 10, 1999, more than one year after the issuance of the rating decision in question. The RO denied service connection for TMJ syndrome and for headaches in a rating decision issued on September 17, 1997. The RO received a notice of disagreement received in September 1997 and issued a statement of the case issued in January 1998. The RO received the substantive appeal on May 10, 1999, more than one year after the issuance of the rating decision. From the above analysis, it appears that the appeal of these issues was not timely perfected and that therefore the Board does not have jurisdiction to hear the appeal. The Board observes that the RO did not advise the veteran of the procedural issues raised by an untimely appeal; the Board has raised the issue sua sponte. The Board has the obligation to assess its own jurisdiction. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). By letter dated in October 1999, the Board advised the veteran and his representative of the timeliness issue and provided an opportunity to submit additional argument. The Board has not received any response. Accordingly, the Board finds that the appeal as to each of the three claims at issue was not timely filed. 38 U.S.C.A. § 7105(a) and (d)(3); 38 C.F.R. §§ 20.200, 20.302(b), 20.303. ORDER Subject to the laws and regulations governing the payment of monetary benefits, entitlement to service connection for a skin rash on the upper arm is granted. Entitlement to service connection for recurrent neck pain is denied. Entitlement to service connection for recurrent back pain is denied. The appeal with respect to the issue of service connection for TMJ syndrome is dismissed. The appeal with respect to the issue of service connection for headaches is dismissed. The appeal with respect to the issue of a compensable disability rating for tinnitus is dismissed. Entitlement to a disability rating greater than 10 percent for status post trauma to the chin with residual scarring and multiple surgical interventions for scar repair and reduction is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals