Citation Nr: 0002077 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 98-12 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to an increased rating for achalasia with scarring post esophageal surgery, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Military Order of the Purple Heart ATTORNEY FOR THE BOARD John Z. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from October 1955 to October 1959. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Reno, Nevada, Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran has failed to submit evidence to justify a belief by a fair and impartial individual that a claim for service connection for tinnitus is plausible. 3. The veteran's service-connected achalasia with scarring post esophageal surgery is productive of no more than moderate disability and permits him to swallow more than liquids. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim for service connection for tinnitus. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for a rating in excess of 30 percent for achalasia with scarring post esophageal surgery are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7203 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Factual Background The service medical records are negative for complaint or finding for tinnitus. The records do show that in May 1959 there was a report of noise exposure due to gunfire during basic training, but an audiometric examination at the time was normal. The ears were clinically evaluated as normal on separation examination in September 1959. Post-service medical evidence shows that the first complaint of tinnitus was February 1996. At that time, the veteran reported that he had been getting ringing in his ears, mostly on the left side, for the past two years. On physical examination, the tympanic membranes were clean. The impression was tinnitus. In June 1996, the veteran complained of left ear tinnitus for two years. The impression was left ear tinnitus. In July 1997, when the veteran was seen for annual follow-up for left ear tinnitus, it was noted that he had had it for three years. Analysis The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence of a well-grounded claim. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well-grounded claim is a plausible claim that is meritorious on its own or capable of substantiation. Murphy at 81. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of a claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (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). Caluza v. Brown, 7 Vet.App. 498 (1995). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit at 93. Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. Accordingly, to establish a well-grounded claim, there must be competent evidence of incurrence or aggravation of a disease or injury in service, of a current disability and of a nexus between the inservice injury or disease and the current disability. See 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. In this case, the medical evidence fails to establish that the veteran has tinnitus that can be linked to service. In this regard, the Board notes that while the service medical records show a report of noise exposure during basic training, there was no complaint or finding for tinnitus and an audiometric examination was normal. The first documented sign of tinnitus was in February 1996, over 25 years following separation from service. The veteran has failed to present any competent medical evidence to support his contention that the current tinnitus is related to any injury in service. In view of the absence of competent medical evidence demonstrating a nexus between the tinnitus and any incident in service, the claim for service connection is not plausible and, therefore, not well-grounded. Rabideau v. Derwinski, 2 Vet.App. 141, 143-44 (1992). The Board rejects the veteran's statements linking his tinnitus to an inservice injury as probative of a well- grounded claim. Such opinions involve medical causation or medical diagnosis as to the effect that the claims are "plausible" or "possible" as required by Grottveit. As the United States Court of Appeals for Veterans Claims (Court) (formerly known as the United States Court of Veterans Appeal) held in Espiritu v. Derwinski, 2 Vet.App. 492 (1992), lay persons are not competent to offer medical opinions, so the assertions of lay persons concerning medical causation cannot constitute evidence of a well-grounded claim. Given the veteran's failure to submit a well-grounded claim, the Board need not reach the benefit of the doubt doctrine. 38 U.S.C.A. § 5107. II. Increased Rating Initially, the Board finds that the veteran's claim is "well-grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is also satisfied that all relevant facts have been properly and sufficiently developed, and that no further assistance to the veteran is required to comply with the statutory duty to assist. 38 U.S.C.A. § 5107. Factual Background In a December 1961 rating decision, the RO granted service connection for achalasia with scarring post esophageal surgery, evaluated as 30 percent disabling from November 5, 1960. Under governing regulation, a disability which has been continuously rated at or above any evaluation of disability for 20 or more years for VA compensation purposes may not be reduced except upon a showing that such rating was based on fraud. 38 C.F.R. § 3.951. The 30 percent rating is thus protected at that level. VA examination in August 1986 showed that the veteran had some dysphagia and heartburn with solid foods and no problems with liquids. It was noted that he was thin at 6 feet 8 inches and 137 pounds, but had been like that for years. In February 1996, the veteran sought an increased rating for his service-connected achalasia with scarring post esophageal surgery. On VA examination in May 1996, the veteran complained of difficulty swallowing and noted that he ate 5-6 times daily. Objective findings noted a 25 cm anterior lower chest wall and abdominal scar. The epigastric area was tender. There was no organomegaly. Bowel sounds were active. There were no bruits. It was noted that his weight had remained steady. There was no anemia. There was no actual partial obstruction. It was noted that there was chest pain when the veteran ate too much causing him to eat small amounts multiple times a day. There was disturbance of motility and epigastric pain in the lower chest. The diagnosis was esophageal stricture with reflux disorder. Received in August 1997 was a statement from Dr. M.W. indicating that he had seen the veteran in August 1992 for lower back problems and vomiting. On VA examination in September 1997, the veteran complained of chronic vomiting, dysphagia, heartburn and indigestion. He reported that he had to eat small amounts over long periods of time and could only drink water, milk and coffee. Objective findings noted that the veteran weighed 130 pounds. He indicated that acidic foods caused vomiting and that he could not eat except for Cream of Wheat, scrambled eggs, and other types of bland food such as bananas. No spicy foods. Pears and peaches rarely. Sweets made him sick. On examination of the stomach, there was a 1 cm x 26 cm scar from the anterior lower chest wall to the umbilicus. There was a 30 cm x 1/2 cm scar on the left lateral posterior chest wall. On palpation of the abdomen, there was tenderness elicited in the epigastric region and both upper quadrants, right and left. There were no masses, rebound tenderness, splitting, guarding or rigidity noted. On auscultation, the bowel sounds were active. No bruits were auscultated. Rectal examination was negative. The veteran had a disturbance of the motility in his esophagus on swallowing. He did not have any obstruction, although he did have difficulty swallowing. He did not required any dilation of the esophagus. There was epigastric, substernal burning. X- rays of the stomach were read as esophageal dilation with abnormal peristalsis without evidence of obstruction. An October 1997 statement from B.A., the veteran's friend, described the veteran as having a great deal of abdominal distress when he ate certain type of food. Analysis Disability ratings are assigned in accordance with the VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. 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). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. The veteran's service-connected disability is currently rated as 30 percent disabling under Diagnostic Code 7203 (stricture of the esophagus). Under this code, a 30 percent rating requires moderate disability; a 50 percent rating requires severe disability, permitting liquids only; and an 80 percent evaluation is warranted when the disability permits passage of liquids only, with marked impairment of general health. 38 C.F.R. § 4.114, Diagnostic Code 7203. Upon review, the Board finds that the criteria for an evaluation in excess of 30 percent are not met. The VA examinations show that while the veteran has problems eating certain types of food (i.e., spicy, acidic) he is not limited to liquids only. The veteran, himself, has stated that he eats several small meals a day. Accordingly, a 30 percent rating is the highest evaluation which may be assigned for the veteran's service-connected disability. 38 C.F.R. § 1155, 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7203. As the Board concludes that the preponderance of the evidence is against the veteran's claim for an increased rating, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107. ORDER Entitlement to service connection for tinnitus is denied. Entitlement to an increased rating for achalasia with scarring post esophageal surgery is denied. DEBORAH W. SINGLETON Member, Board of Veterans' Appeals