BVA9504305 DOCKET NO. 93-06 850 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Manila, Philippines THE ISSUES 1. Entitlement to service connection for pterygium, left eye. 2. Entitlement to service connection for malaria. 3. Entitlement to service connection for diabetes mellitus with neuropathy and retinopathy. 4. Entitlement to service connection for glaucoma, right eye. 5. Entitlement to service connection for cataract, left eye. 6. Entitlement to service connection for status post laser treatment, right eye. 7. Entitlement to service connection for lumbosacral degenerative disc disease. 8. Entitlement to service connection for external hemorrhoids. 9. Entitlement to service connection for esotropia, right eye. 10. Entitlement to an increased (compensable) evaluation for pterygium, right eye. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from February 1945 to January 1946. The service department has noted that the appellant was determined not to have been in a prisoner of war status during service. This appeal arose from an August 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manila, Philippines. The RO denied entitlement to service connection for malaria, diabetes mellitus with neuropathy and retinopathy, right eye glaucoma and esotropia, status post laser treatment of the right eye, left eye cataract, external hemorrhoids, degenerative disc disease of the lumbosacral area, and left eye pterygium; and granted entitlement to service connection for right eye pterygium, which was assigned a noncompensable evaluation. In a July 1992 rating decision, the RO affirmed the denial of entitlement to service connection for degenerative disc disease of the lumbosacral area, and denied entitlement to service connection for nephritis with renal failure. The RO affirmed the prior denials of entitlement to service connection for degenerative disc disease of the lumbosacral area when it issued rating decisions in October 1992 and January 1993. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has the multiple disabilities at issue for which he seeks compensation benefits as the result of his service. He argues that the RO is being unfair in denying his claims on the basis that his private physician has not demonstrated onset of his disabilities coincident with active service in the absence of approved scientific methods. He states that the war ravaged the Philippines and such modern scientific instrumentation was not available. He argues that the diseases for which he seeks compensation benefits were aggravated by torture at the hands of the enemy. The appellant states it is well known that malaria was common in the Philippines during World War II. The claimant argues that just as service connection was granted for pterygium in the right eye on whatever basis, service connection should also be granted for pterygium in the left eye because it is the same disorder. 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 veteran has not submitted evidence of well grounded claims for service connection for pterygium of the left eye, malaria, diabetes mellitus with neuropathy and retinopathy, glaucoma of the right eye, cataract of the left eye, status post laser treatment of the right eye, lumbosacral degenerative disc disease, external hemorrhoids, and esotropia of the right eye; and that the preponderance of the evidence is against a grant of an increased (compensable) evaluation for pterygium of the right eye. FINDINGS OF FACT 1. The claims for service connection for pterygium of the left eye, malaria, diabetes mellitus with neuropathy and retinopathy, glaucoma of the right eye, cataract of the left eye, status post laser treatment of the right eye, lumbosacral degenerative disc disease, external hemorrhoids, and esotropia of the right eye are not supported by cognizable evidence showing that the claims are plausible or capable of substantiation. 2. Esotropia of the right eye has not been shown to cause any loss of vision. CONCLUSIONS OF LAW 1. The claims for service connection for pterygium, left eye; malaria; diabetes mellitus with neuropathy and retinopathy; glaucoma, right eye; cataract, left eye; status post laser treatment, right eye; lumbosacral degenerative disc disease; external hemorrhoids; and esotropia, right eye are not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The requirements for an increased (compensable) evaluation for pterygium, right eye, have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.31, 4.84(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for pterygium, left eye; malaria; diabetes mellitus with neuropathy and retinopathy; glaucoma, right eye; cataract, left eye; status post laser treatment, right eye; lumbosacral degenerative disc disease; external hemorrhoids; and esotropia, right eye. Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that his claims are well grounded; that is, that his claims are plausible. Grivois v. Brown, 6 Vet.App. 136, 139 (1994); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his claims for the disabilities at issue should be dismissed. Where the determinative issues involve causation or a medical diagnosis, competent medical evidence to the effect that the claims are possible or plausible is required. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his lay opinion because he is not a medical health professional and does not constitute competent medical authority. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, his lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for well grounded claims, Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the absence of cognizable evidence renders the veteran's claims not well grounded. Affidavits for Philippine Army Personnel completed and signed by the veteran in November 1945 and January 1946 show he denied a history of incurrence of any illnesses during service. The January 1946 report of medical examination prior to discharge contains no findings of a pterygium, left eye; malaria; diabetes mellitus with neuropathy and retinopathy; glaucoma, right eye; cataract, left eye; status post laser treatment, right eye; lumbosacral degenerative disc disease; external hemorrhoids; and esotropia, right eye. The January 1946 report of medical examination prior to discharge noted bilateral visual acuity was 20/20. The evaluation of the endocrine system was reported as normal. The anus and rectum were noted to be normal. As to musculoskeletal defects, the examiner noted there were none. The veteran denied that he had any disease which was disabling. He denied having incurred any diseases during service. The laboratory reports form associated with the separation examination was noted as "negative." A May 1991 VA outpatient consultation report shows the veteran reported that he developed low back pain beginning in 1969. He stated he had had the pain for well over five years, on a persistent basis, though it had begun in 1969. A physical examination concluded in diagnostic impressions of low back pain, by history; and probable rule out spinal stenosis. A May 1991 VA special ophthalmology examination concluded in diagnostic impressions of pseudophakia, right eye; glaucoma, right eye, out of control; esotropia, probably secondary to decreased acuity of the right eye; background diabetic retinopathy; status post laser treatment for presumed macular edema, right eye; decreased macular function, right eye; and posterior subcapsular cataract, left eye. At a May 1991 VA general medical examination, the veteran reported that malaria occurred during World War II. He stated he was hospitalized for one week in 1945 and treated with Atabrine with resolution of malaria. The appellant stated that diabetes mellitus was diagnosed in 1969. The examination diagnoses were alleged history of malaria, World War II, resolved with medication, no residuals; adult onset diabetes mellitus, type II; mild sensory peripheral neuropathy, no symptoms, secondary to diabetes mellitus; and slight external hemorrhoids, no symptoms. In a December 1991 letter, Juanito B. Sacdalan, M.D., certified that he had examined the veteran last from December 8, 1945 to January 23, 1946, and found him to be suffering from lumbosacral degenerative disc disease with associated kidney failure. The claims file contains a joint affidavit dated in January 1992, from two individuals identifying themselves as having known the veteran and having been his friends since childhood. They noted they had been aware of the veteran's having suffered from kidney disease up to the time of his departure from their community to reside in the United States. In a May 1992 letter, Dr. Sacdalan certified that the veteran had been his patient and found to be suffering from lumbosacral disc degeneration and nephritis. He provided a copy of a record of treatment dated December 8, 1945, wherein the veteran was noted to have lumbosacral degeneration with nephritis. The copy of the treatment report was dated through January 23, 1946. On file is a computerized axial tomographic scan of the lumbosacral spine noting, among other things, hypertrophic bony changes, severe spinal stenosis at L4-5 due to hypertrophic bony changes, and degenerative disc disease. An August 1992 magnetic resonance imaging of the lumbar spine noted diagnostic impressions of congenitally small spinal canal with diffuse spinal stenosis due to degenerative hypertrophic changes and herniated nucleus pulposus at L5-S1; and spondylolisthesis at L4- 5 due to degenerative facet disease. A September 1992 computerized axial tomogram of the spine noted diagnostic impressions of marked spinal stenosis at L4-5 and moderate spinal stenosis at L3-4 and L5-S1. In his June 1992 letter, Dr. Sacdalan certified that his provided copy of a record of his treatment of the veteran from December 8, 1945 to January 23, 1946, for lumbosacral degenerative disc disease associated with kidney failure was a true transcript of his office records. He again provided a copy of his previously submitted treatment report. On file is the operative record pertaining to spinal surgery undergone by the veteran in October 1992. The Board observes that the veteran denied a history of any service incurred diseases when he completed service affidavits in December 1945 and January 1946. The report of medical examination prior to service discharge and conducted in January 1946 is negative for any of the disabilities for which compensation benefits are claimed. Moreover, the appellant specifically denied incurrence of any illness in service, and denied having any illness at separation from service. While the veteran reports that malaria was a common illness among men serving in the Philippines during World War II, the Board observes that such disorder is not reported in his service affidavits nor on his separation examination. As pterygium of the left eye was not shown in service, service connection cannot be granted, irrespective of the grant of service connection for right eye pterygium. Clinical evidence of some of the disorders for which service connection is claimed was reported many years after service. However, a private physician, as noted earlier, has provided copies of his purported treatment of the veteran for lumbosacral degenerative disease from December 1945 to January 1946. The treatment report is in direct contrast to the veteran's having denied on three separate occasions; namely, when completing affidavits in December 1945 and January 1946 and when examined for separation from service in January 1946, incurrence of any disorders, much less lumbosacral degenerative disc disease and kidney disease, a disability not at issue on appeal. Furthermore, the separation examination conducted in 1946 was negative for any musculoskeletal defects and the veteran specifically denied having any disorder. Moreover, the veteran reported, when examined by VA in May 1991, that his back pain did not start until 1969. The Board finds the copy of the private physician's purported record of treatment of the veteran as not credible in nature nor probative of the issue of incurrence of chronic back disability coincident with active service. The determination is reached irrespective of the absence of any scientific instrumentation available for use in the Philippines during and subsequent to World War II. The veteran has alleged incurrence of multiple disabilities coincident with active service, and as a result of torture at the hands of the enemy. The service department has determined that he was not ever in a prisoner of war status. There is no competent evidence linking any of the multiple disabilities for which compensation benefits are claimed to the appellant's active service. The veteran has provided no cognizable evidence in this regard. In the absence of cognizable evidence linking the post service reported multiple disabilities to service, the veteran's claims for service connection are not well grounded and must be dismissed. The Board recognizes that the appellant's claims for service connection for the multiple disabilities at issue have been disposed of in a manner different from that utilized by the RO. The Board therefore considered whether the claimant has been given adequate notice to respond, and if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the implausibility of the appellant's claims and his failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision. In this regard, the Board points out that by the action of dismissing his claims, the Board has not burdened the veteran with a prior final adjudication on the merits. Thus, if he is able to submit well grounded claims in the future, he will not be faced with the higher hurdle of providing new and material evidence to reopen his claims after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105; McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). The Board also observes that the RO, in assuming that the veteran's claims for service connection for the multiple disabilities at issue were well grounded, accorded him greater consideration than his claims in fact warranted under the circumstances. Bernard. To remand the case to the RO for consideration of the issue of whether the appellant's claims for service connection for the multiple disabilities at issue are well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to him. VA O.G.C. Prec. Op. 16-92, 57 Fed.Reg. 49,747 (1992). II. Entitlement to an increased (compensable) evaluation for pterygium, right eye. The Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that it is at least plausible that his right eye pterygium has increased in severity. The Board is satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.A. § 5107(a). The January 1946 report of physical examination for discharge shows the veteran had a pterygium of the right eye. The May 1991 VA special ophthalmology examination shows the veteran had a 22 year history of adult onset diabetes mellitus. He had had right cataract extraction with a lens implant and had had several laser treatments in the right eye. He stated that the right eye never saw very well after the surgery. He had consulted an ophthalmologist who prescribed drops for elevated pressure in the right eye. The appellant stated that he had been having pain in his right eye. On examination visual acuity in the right eye was 20/200, and 20/20 in the left eye. Near visual acuity was J16 on the right and J1 on the left. Ocular motility was full with 10 prism diopters of esotropia at distance. He had difficulty seeing a 3 millimeter round white target against a black tangent screen. Slit lamp examination disclosed a rather stable appearing pterygium. There was both a nasal and temporal pterygium on the right eye and a nasal pterygium on the left eye. The right eye had a posterior chamber lens implant. There was a very large posterior capsulotomy and some vitreous was seen in the anterior chamber which appeared to have come through one of the positioning holes in the lens implant. The left lens had a central spot of rather dense posterior subcapsular opacity. Applanation pressure was 39 on the right and 15 on the left. On fundus examination the discs appeared similar with 40-50 percent cups. There were some scattered dot hemorrhages and exudates bilaterally. The right fovea appeared to have a spot of exudate in it. There were rather dense laser scars surrounding the right maculas. The diagnostic impressions were pseudophakia, right eye; glaucoma, right eye, out of control; esotropia, probably secondary to the decreased acuity of the right eye; background diabetic retinopathy; status post laser treatment for presumed macular edema, right eye; decreased macular function, right eye; and posterior subcapsular cataract, left eye. The veteran's pterygium of the right eye is rated under diagnostic code 6034 for pterygium. A noncompensable evaluation has been assigned because the service-connected pterygium has not been shown to be productive of any loss of visual acuity. The record shows that the veteran has several nonservice- connected diseases in his right eye. He underwent a right lens implant subsequent to cataract surgery. His reported 20/200 visual acuity is not shown to due to his pterygium. There is no basis upon which to predicate a grant of an increased (compensable) evaluation for the right eye pterygium. No question has been presented as to which of two or more evaluations would more properly classify the severity of the right eye pterygium. 38 C.F.R. § 4.7. The right eye pterygium has not rendered the veteran's disability picture unusual or exceptional in nature, and has not been shown to markedly interfere with employment. It has not required frequent inpatient care as to render impractical the application of regular schedular standards, thereby precluding a grant of an increased (compensable) evaluation on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). As pterygium of the right eye has not been shown to have resulted in a loss of visual acuity, the Board finds no basis upon which to predicate a grant of an increased (compensable) evaluation with application of all pertinent governing criteria. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.84(a). ORDER The claims for service connection for pterygium, left eye; malaria; diabetes mellitus with neuropathy and retinopathy; glaucoma, right eye; cataract, left eye; status post laser treatment, right eye; lumbosacral degenerative disc disease; external hemorrhoids; and esotropia, right eye, are dismissed. Entitlement to an increased (compensable) evaluation for pterygium, right eye, is denied. ALBERT D. TUTERA 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.