BVA9501762 DOCKET NO. 93-08 367 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating for facial scars, currently rated as 10 percent disabling. 2. Whether new and material evidence has been presented to reopen a claim for service connection for headaches. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Associate Counsel INTRODUCTION The veteran served on active duty from November 1945 to April 1947. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse rating action by the Columbia, South Carolina, Regional Office (hereinafter RO). In a statement from the veteran received in December 1992, the veteran raised the issue of service connection for seizures resulting from an accident involving a blow to the head during service. As this issue is not inextricably intertwined with the issues on appeal, the RO is directed to the conduct the appropriate development of this issue. Kellar v. Brown, 6 Vet.App. 157 (1994). The Board notes that because a February 1988 Board decision denied service connection for a seizure disorder, the RO should inform the veteran that he needs to provide "new" and "material" evidence to reopen this claim. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the currently assigned 10 percent evaluation for his service-connected facial scars does not adequately reflect the level of disability resulting from the scars. He says that scars between his eyes have become aggravated because he wears glasses. The veteran also described marked discoloration associated with the scarring and stated that the scars were tender to touch. He also contends that he suffers from headaches as a result of an injury incurred during service and has requested the records from service pertaining to treatment of this injury. 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 file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the veteran's claims. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's facial scars are no more than moderately disfiguring. 3. Service connection for headaches was originally denied by a September 1968 rating decision. 4. The additional evidence submitted in an attempt to reopen the veteran's claim for service connection is either cumulative of evidence previously considered or not so probative as to create a reasonable possibility of a change in the outcome of the September 1968 rating decision. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for the veteran's facial scars are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7800 (1993). 2. "New" and "material" evidence sufficient to reopen the veteran's claim for service connection for headaches has not been presented. 38 U.S.C.A. §§ 1110, 1131, 5107, 5108, 7105 (West 1991); 38 C.F.R. § 3.156, 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran has presented sufficient evidence to conclude that his claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled as there is enough evidence of record to make an equitable decision in the veteran's appeal. In this regard, we note that the records from treatment provided in Germany requested by the veteran appear to be contained in the claims file, as reports from treatment provided at a U.S. Army medical facility in Germany in April and May 1946 for facial injuries sustained in an accident involving an ambulance in which the veteran was riding are of record. Included in these reports are a clinical record brief, operation reports and nurse's notes. There is no indication that there are any additional records available that pertain to treatment at that time for the veteran's facial scars. In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: The veteran prevails in either event. However, if the weight of the evidence is against the veteran's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). I. Increased rating for facial scars Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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 required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Moderately disfiguring scars of the head, face or neck warrant a 10 percent disability rating. Severely disfiguring scars of the head, face or neck, especially if they produce a marked and unsightly deformity of the eyelids, lips or auricles, warrant a 30 percent disability rating. 38 C.F.R. § 4.118, DC 7800. During service in April 1946, the veteran was involved in an accident in which the ambulance in which he was riding struck a tree. Apparently, the veteran struck his head on an object inside the ambulance as a result of the accident. The injuries described at that time included a mild laceration of the nose and mild abraded wound of the nose and face. The veteran was seen in the shock ward and a laceration extending from the forehead down over the bridge and sides of the nose requiring 30 sutures was closed. After staying in the hospital for approximately one week, the veteran was found to be healed and returned to duty. Approximately one year later in March 1947, the veteran's separation examination showed the veteran's scar to be non- symptomatic, well healed and non-disabling. The veteran filed a claim for service connection for "head pains" resulting from the 1946 accident in May 1968. Reports from a July 1968 VA examination referred to a scar on the bridge of the veteran's nose and a head contusion. A September 1968 rating decision granted service connection for scars of the forehead, nose and lip and assigned a 10 percent disability rating. This rating has been in effect for over 20 years and is protected from reduction. 38 U.S.C.A. § 110. There is no other clinical evidence of record referring to treatment for the veteran's scars, and August 1977 and February 1988 Board decisions continued the 10 percent disability rating. The February 1988 Board decision had the benefit of color photographs of the veteran's face received in November 1986, none of which showed more than slight, if any, scarring. Also considered by the Board in February 1988 was the report from an October 1986 VA examination that noted only barely visible non- disfiguring scarring. While VA outpatient treatment records dated from January 1991 to April 1992 refer to treatment for such disabilities as hypertension, gastrointestinal problems, and psychiatric difficulties, they do not show any disability due to facial scarring. Furthermore, there is no showing that the wearing of glasses has irritated these or expanded these scars in such a way as to warrant an higher evaluation. While we have carefully considered the veteran's statements describing what he feels is a more serious disability picture involving his scarring, the probative weight of these uncorroborated subjective statements is overcome by the weight of the essentially negative objective clinical evidence. This objective "negative" evidence includes the pictures of the veteran's face of record which show little, if any, scarring. It is also includes the report from the October 1986 VA examination describing only barely visible non-disfiguring scars. Moreover, while extensive private and VA clinical evidence dated from 1968 to 1992 referring to treatment for other disabilities is of record, none of these records refer to treatment for any disability due to facial scarring. As the weight of this "negative" evidence of record does not show severely disfiguring facial scars that would warrant a 30 percent evaluation under 38 C.F.R. § 4.118, DC 7800, an increased rating under the Ratings Schedule is not warranted. 38 C.F.R. § 3.321(b)(1) provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disabilities, an extraschedular evaluation will be assigned. However, neither frequent hospitalization nor marked interference with employment due to the veteran's service-connected facial scars is demonstrated. Therefore, an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) is not warranted. II. Whether new and material evidence has been presented to reopen the claim for service connection for headaches For service connection to be granted, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. The United States Court of Veteran's Appeals has held that the Board must perform a two-step analysis when a veteran seeks to reopen a claim based on new evidence. First, the Board must determine whether the additional evidence is "new" and "material." Second, if the Board determines that new and material evidence has been added to the record, the claim is reopened and the Board must evaluate the merits of the veteran's claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140 (1991). "New" evidence means more than evidence which was not previously of record. To be "new", the additional evidence must be more than merely cumulative. Colvin v. Derwinski, 1 Vet.App. 171 (1991). To be "material", the additional evidence must be probative of the issue at hand. Also, to be "material", there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome of the previous decision. Smith v. Derwinski, 1 Vet.App. 178 (1991). The veteran submitted a claim for VA benefits in May 1968, contending that his "head pains" were the result of the 1946 injury. He reported treatment by a private doctor for "head pains" since 1958. No records were submitted. This reported treatment was about 10 years after separation and there is no allegation that reocrds could be obtained or are pertinent. A September 1968 rating decision denied service connection for headaches, finding nothing in the veteran's service medical records to "account" for the veteran's headaches. Evidence before the RO at that time included the veteran 's service medical records, the most relevant of which pertained to the April 1946 ambulance accident. These records indicate the veteran never lost consciousness. A neurologic examination was negative and the only treatment provided at that time related to the lacerations on the veteran's face. The nurse's notes do not reflect evidence of headaches and after approximately one week, the veteran returned to duty with no complaints. The remaining service medical records, including the separation examination, are negative for headaches. Also included as evidence before the RO at the time of the September 1968 decision were reports from a July 1968 VA neuropsychiatric examination. The veteran reported to the examiner that during the 1946 accident, he struck the bridge of his nose on a projection of the ambulance. The veteran described headaches occurring 4 or 5 times a week and lasting for an hour or more. He estimated missing 12 to 15 days of work since January of that year. The headaches began over the right eye and went directly to the back of his head. The veteran described the headaches as being throbbing in nature and sudden in onset. The veteran did not indicate that anything in particular caused the headaches. The headaches were relieved by "Goody Powder." A neurologic examination was essentially negative and, after the veteran's records were reviewed, the diagnosis was "[h]eadaches subjective, etiology undetermined." Service connection for headaches was again denied by an April 1971 rating decision, but the notice of this denial sent to the veteran in that month, while referring to other issues that were denied, made no reference to the issue of service connection for headaches. As there is no evidence that the veteran was notified of the April 1971 denial, that decision cannot be considered to be "final". Therefore, the only final rating decision on the issue of service connection for headaches of record is that of September 1968, and all evidence submitted after that time must be analyzed to determine whether it contains any evidence that is both "new" and "material." The first items of additional evidence to consider are VA clinical reports received in March 1971. While "new", these are not "material" as they are not probative as to the issue of the relationship between the 1946 accident and headaches. While the veteran gave a history of headaches since service, these records indicate that the veteran had no ascertainable diseases at that time. The next item to consider is a report from VA hospitalization in October and November 1975. While "new", this evidence is again not "material". Included in this report is a conclusion by a neurologist who examined the veteran that the veteran's headaches were caused by tension. This neurologist found no need for further neurologic examination given the fact that an "EEG", brain scan and skull X-ray were all normal. As these reports tend to show the veteran's headaches were the result of tension rather than the 1946 accident, there certainly is no reasonable possibility that this evidence, in light of the other evidence of record, both old and new, would change the outcome of this case. Smith v. Derwinski, 1 Vet.App. 178 (1991). Additional evidence submitted in May 1976 consisted of VA outpatient treatment records that are "new" but not "material" because they noted dental and psychiatric difficulties but made no reference to headaches. Also submitted at that time was a duplicate of the October/November 1975 VA inpatient treatment, which is obviously not "new" evidence. Submitted in November 1976 was a January 1976 statement from Ian S. Gale, M.D., a psychiatrist. Dr. Gale diagnosed the veteran as having psychotic depressive reaction, and he reported that the veteran told him he had headaches "24 hours a day every day" which he dated from the in-service accident. He recommended that the veteran be seen by a neurologist to determine whether an intracranial lesion should be considered as the cause of the headaches. Dr. Gale did not have the benefit of the veteran's claims file at the time he completed this statement, and given the opinion of the neurologist who examined the veteran during his October/November 1975 inpatient treatment that the headaches were caused by tension, the Board again concludes that there is no "reasonable possibility" that Dr. Gale's statement, considered in light of all the evidence of record, would change the outcome of this case. Thus, while "new", Dr. Gale's statement is not "material." It is based on a discredited history. As such it has no probative value. See Reonal v. Brown, 5 Vet.App. 458 (1993); Swann v. Brown, 5 Vet.App. 229 (1993); Black v. Brown, 5 Vet.App. 177 (1993). Received in February 1981 was a statement from Waitus O. Tanner, M.D., dated in January 1981. Dr. Tanner stated that he had been treating the veteran for "blackouts" and a seizure disorder. He also stated that the veteran had a hearing loss due to injury. While "new", this evidence is not "material" as it does not provide probative information concerning the etiology of the veteran's headaches. For the same reason, a listing of the veteran's medication submitted at that time, while "new", is not "material." VA clinical records dated from 1982 through 1985 associated with the claims file, while "new", are not "material" because rather than referring to treatment for headaches, various other disabilities are referenced, the most prominent of which were a meniscus tear and bursitis of the shoulder. Reports from an October 1986 VA examination, while noting the veteran's complaints of headaches, contain no clinical findings linking headaches to an event in service. Thus, while "new", this evidence is also not "material." A transcript from the veteran's hearing at the RO in March 1987 is of record. During this hearing, the veteran repeated his contention that he suffered from headaches as a result of the in- service injury. As this contention was considered by the RO at the time of it September 1968 decision, the Board does not consider this testimony to be "new." The Board notes also that such lay assertions as to facts requiring medical knowledge are of insufficient evidentiary value to be considered "material" evidence. Moray v. Brown, 5 Vet.App. 211 (1993). In April 1992, the veteran submitted photocopies of the report from his separation examination and a service medical record from May 1946 referring to treatment for injuries sustained in the ambulance accident. These reports were of record at the time of the September 1968 rating decision, and are therefore not "new." A statement from Dr. Weston received in June 1992, while "new", is not "material" as it refers principally to a cervical spine disorder. While he made reference to the veteran's continuing problems with headaches, Dr. Weston did not express an opinion as to their etiology. VA clinical reports of record dated from January 1991 to April 1992, while "new", are not "material" as they do not refer to treatment for headaches but instead refer primarily to treatment for a gastrointestinal disorder, hypertension, knee problems, and psychiatric difficulties. While the veteran complained about frequent occipital headaches since the in-service accident in July 1991, the examiner did not express an opinion as to the etiology of the headaches. Thus, there is no reasonable possibility that this evidence would change the outcome of the case given the lack of any objective clinical evidence of an etiologic link between the veteran's accident in service and headaches. As none of the evidence discussed above is both "new" and "material", the claim for service connection for headaches is not reopened. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. No further adjudication of this claim is warranted. See, Kehoskie v, Derwinski, 2 Vet.App. 31 (1991). ORDER A disability rating in excess of 10 percent for facial scars is denied. "New" and "material" evidence having not been submitted, the claim for service connection for headaches is not reopened and the benefits sought are denied. __________________________________ MICHAEL D. LYON Member, Board of Veterans' Appeals 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 which 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 which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.