Citation Nr: 0000916 Decision Date: 01/12/00 Archive Date: 01/27/00 DOCKET NO. 97-20 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a skin disability. 2. Entitlement to service connection for a chronic sinus disability. 3. Entitlement to an increased (compensable) rating for the residuals of a laceration of the right middle finger, with severed digital nerve branches. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from October 1967 to October 1970. A perfected appeal to the Board of Veterans' Appeals (Board) of a particular decision entered by a Department of Veterans Affairs (VA) regional office (RO) consists of a notice of disagreement in writing received within one year of the decision being appealed and, after a statement of the case has been furnished, a substantive appeal received within 60 days of the issuance of the statement of the case, or within the remainder of the one-year period following notification of the decision being appealed. The present case arises from a January 1997 rating action, with which the veteran expressed his disagreement in a May 1997 statement. A statement of the case was issued in June 1997, and the appeal was perfected upon the receipt at the RO, later that month, of a VA Form 9 (Appeal to Board of Veterans' Appeals). A supplemental statement of the case was issued in October 1997, and a hearing at which the veteran testified was conducted at the RO in November 1997. In due course, the case was forwarded to the Board in Washington, DC. FINDINGS OF FACT 1. The veteran's assertion that he has a skin disability and a chronic sinus disability, which are related to service, is not supported by medical evidence that would render the claims for service connection for those disabilities plausible under the law. 2. All evidence necessary for an equitable disposition of the veteran's appeal as it pertains to his claim for an increased rating for his finger disability has been obtained by the RO. 3. The veteran's finger disability is not shown to be productive of mild incomplete paralysis of the median nerve or to cause any limitation of motion of the finger; the finger scar does not produce repeated ulceration, nor is it tender, painful, or poorly nourished. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim for service connection for a skin disability. 38 U.S.C.A. § 5107 (West 1991). 2. The veteran has not submitted a well-grounded claim for service connection for a chronic sinus disability. 38 U.S.C.A. § 5107 (West 1991). 3. The criteria for a compensable evaluation for the residuals of a laceration of the right middle finger, with severed digital nerve branches are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.103, 4.1, 4.2. 4.7, 4.31, Diagnostic Codes 5226, 7803, 7804, 8515 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection The threshold question to be answered regarding these claims is whether they are well grounded. 38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). If they are not, they must fail and there is no further duty to assist in their development. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78 (1990). This requirement has been reaffirmed by the United States Court of Appeals for the Federal Circuit, in its decision in Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2348 (1998). That decision upheld the earlier decision of the United States Court of Appeals for Veterans Claims (formerly known as the United States Court of Veterans Appeals) which made clear that it would be error for the Board to proceed to the merits of a claim which is not well grounded. Epps v. Brown, 9 Vet.App. 341 (1996). See Morton v. West, 12 Vet.App. 477, 480 (1999) (noting that the Federal Circuit, in Epps v. Gober, supra, "rejected the appellant's argument that the Secretary's duty to assist is not conditional upon the submission of a well-grounded claim"). The Court of Appeals for Veterans Claims has also held that, in order to establish that a claim for service connection is well-grounded, there must be competent evidence of: (1) a current disability (a medical diagnosis); (2) the incurrence or aggravation of a disease or injury in service (lay or medical evidence); and (3) a nexus (that is, a link or a connection) between the in-service injury or aggravation and the current disability. Competent medical evidence is required to satisfy this third prong. Caluza v. Brown, 7 Vet.App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). See Elkins v. West, 12 Vet.App. 209 (1999) (en banc). "Although the claim need not be conclusive, the statute [38 U.S.C.A. § 5107] provides that [the claim] must be accompanied by evidence" in order to be considered well grounded. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). In a claim of service connection, this generally means that evidence must be presented which in some fashion links the current disability to a period of military service or to an already service-connected disability. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303 (1996); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). Evidence submitted in support of the claim is presumed to be true for purposes of determining whether it is well grounded. King v. Brown, 5 Vet.App. 19, 21 (1993). Lay assertions of medical diagnosis or causation, however, do not constitute competent evidence sufficient to render a claim well grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1992); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). Under applicable criteria, service connection may be granted for disability resulting from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). With respect to the veteran's claim concerning a skin disability, a review of his service medical records reflects only that mild acne was noted when the veteran was examined in connection with his discharge from service in July 1970. The post-service medical records do not reflect the presence of any skin problems until 1975, some 5 years after the veteran's period of service. Indeed, on an application for compensation benefits submitted by the veteran in 1972, he made no mention of any skin problems, and, when he was examined for VA purposes in September 1972, the veteran's skin was described as clear. In records dated in 1975, however, it was noted that the veteran had a foot and groin area rash, as well as a pilonidal sinus. Thereafter, the medical records reflect various diagnoses of skin problems. These included folliculitis, intertrigo, tinea cruris, lichen simplex chronicus, neurodermatitis, atopic dermatitis, eczematous dermatitis, tinea pedis, a verruca, and irritant dermatitis. When examined in October 1996, shortly after the veteran submitted the application of benefits which is the subject of this appeal, he was diagnosed to have eczema. The presence of these skin conditions notwithstanding, it is significant that none of them was characterized as acne, and none of the veteran's treatment providers or examiners indicated the opinion that these problems were related to the veteran's period of service. With all due respect for the contentions advanced in this case by the veteran and his representative, to the effect that his current skin disability had its onset during service, we must note that neither the veteran nor the representative can meet the burden of presenting evidence of a well-grounded claim merely by presenting his own testimony, because, as a lay person, neither is competent to offer medical opinions. See Voerth v. West, 13 Vet.App. 117, 120 (1999) ("Unsupported by medical evidence, a claimant's personal belief, no matter how sincere, cannot form the basis of a well-grounded claim."). See also Bostain v. West, 11 Vet.App. 124, 127 (1998), citing Espiritu, supra; Carbino v. Gober, 10 Vet.App. 507, 510 (1997); aff'd sub nom. Carbino v. West, 168 F.3d 32 (Fed. Cir. 1999); Routen v. Brown, 10 Vet.App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"), aff'd sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998), cert. denied, 119 S. Ct. 404 (1998). Moreover, the current record is devoid of any medical opinion linking the mild acne, noted when the veteran was discharged from service, with any current findings first medically demonstrated many years after service. Under these circumstances, it is the Board's view that the veteran has failed to satisfy the threshold requirement for submitting a well-grounded claim for service connection for a skin disability, as set out in the judicial precedent in Caluza, supra, and as imposed by 38 U.S.C.A. § 5107(a). In view of this, there is no duty to assist the veteran further in the development of his claim, and the Board does not have jurisdiction to adjudicate it. Boeck v. Brown, 6 Vet.App. 14 (1993), Grivois v. Brown, 6 Vet.App. 136 (1994). As claims that are not well grounded do not present a question of fact or law over which the Board has jurisdiction, the claim for service connection for a skin disability must be denied. Regarding the veteran's claim as it concerns a chronic sinus disability, it is observed that he was treated for an upper respiratory infection in service in November and December 1967, and for viral syndrome and pharyngitis in September 1968. There were, however, no abnormalities of the sinuses noted when the veteran was evaluated in connection with his discharge from service in July 1970. Similarly, when the veteran's sinuses were examined in connection with the VA examination performed in 1972, they were described as essentially negative. Thereafter, while there are medical records dated in the 1970's which reflect that the veteran was treated for what was considered to be an upper respiratory infection, and recurrent rhinitis; and that, in the 1980's, he was treated for head congestion, questionable allergies and bronchitis; there is no medical record dated during this period wherein a chronic sinus disability is shown. Similarly, no medical treatment records dated after 1990 reflect the presence of any sinus disability. In this regard, it is observed that, when the veteran was examined for VA purposes in connection with his claim in October 1996, he was diagnosed to have recurrent sinusitis. Nevertheless, the examiner did not relate this finding (made some 26 years post-service) to the veteran's period of service. In the absence of medical evidence showing a nexus between the recently diagnosed recurrent sinusitis and the veteran's service, the veteran has failed to satisfy the threshold requirement for a well-grounded claim for service connection for that disability, as set out in the judicial precedent in Caluza, supra, and as imposed by 38 U.S.C.A. § 5107(a) (West 1991). In view of this, there is no duty to assist the veteran further in the development of his claim, and the Board does not have jurisdiction to adjudicate it. Boeck, Grivois, supra. As stated above, claims that are not well grounded do not present a question of fact or law over which the Board has jurisdiction, and therefore, the claim for service connection for a chronic sinus disability must be denied. Increased Rating With regard to this aspect of the veteran's appeal, the Board observes that claims for increased ratings are, in general, well grounded within the meaning of 38 U.S.C.A. § 5107, since an assertion by a claimant that the condition has worsened is sufficient to state a plausible, well-grounded claim. See Jackson v. West, 12 Vet.App. 422, 428 (1999), citing Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992). The veteran has asserted that the service-connected disability at issue is worse than currently evaluated by the RO, and he has, therefore, stated a well-grounded claim. With that initial burden having been satisfied, VA has a duty to assist the veteran in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1996). The Court has held that the duty to assist includes obtaining available records which are relevant to the claimant's appeal, and that this duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet.App. 90 (1990). In this regard, the RO has obtained the report of a current examination conducted for VA purposes, as well as copies of the records of the veteran's outpatient treatment. As the evidence does not indicate that any further relevant records are available, we conclude that the duty to assist has been satisfied. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.1 requires that each disability be viewed in relation to its history, and that there be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.2 requires that medical reports be interpreted in light of the entire recorded history, and that each disability must be considered from the point of view of the veteran's working or seeking work. 38 C.F.R. § 4.7 provides that, where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. The requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. A review of the record reflects that, while in service in July 1968, the veteran sustained what was described as a deep, half moon laceration of the third finger of the right had, which required sutures. This injury was medically followed through August 1968, and the service records thereafter do not show that any further treatment was administered. No pertinent abnormalities were noted when the veteran was examined in connection with his discharge from service in July 1970. In 1972, the veteran submitted an application for service connection for his in-service finger injury, and, in September 1972, he underwent an examination for VA purposes. The report of this examination revealed that the veteran complained of decreased sensation on the radial aspect of the distal phalanx of this finger, and occasional aching and varying degrees of numbness. Physical inspection revealed a healed laceration of the mid-lateral aspect of the radial aspect of the right middle finger, going from the distal aspect to the middle phalanx and curving slightly onto the volar aspect of the distal phalanx, about an inch in length. The scar was well healed and non-tender, and it was noted that the veteran had full function of the flexor sublimus and flexor profundus to the index finger. There was, however, decreased sensation on the radial aspect distal to the scar. The diagnostic impression was "[h]ealed [la]ceration right middle finger with severed digital nerve branches and decreased sensation distal to the laceration." In a rating action dated in October 1972, the veteran was service connected for the residuals of "laceration right middle finger with severed digital nerve branches," and assigned a noncompensable evaluation. Thereafter, VA and private treatment records, dated between 1975 and 1996, were associated with the claims file. During those 20 years, these records show only one occasion when the veteran sought treatment for his service-connected finger disability. That occurred in October 1996, the month after the veteran submitted the claim that is the subject of this appeal. That record specifically reflects that the veteran advised those treating him that he was seeking an increase in his service- connected benefits, and that he complained of right middle finger numbness. The diagnostic impression, however, was carpal tunnel syndrome, which previously-dated records revealed had affected the veteran bilaterally. That, of course, is not the disability for which service connection has been established. Later in October, the veteran underwent a general VA medical examination. The report from this examination reveals, in pertinent part, that the veteran reported he never had any limitation of motion of his service-connected finger, but that he had on and off numbness. Physical inspection of the finger scar revealed that there was no keloid formation, and that it was not tender. There was also no limitation of movement noted, nor any sensory or motor deficits. The diagnosis was status post laceration of right middle finger with no limitation of movement, but intermittent numbness. At the hearing conducted at the RO in November 1997, the veteran testified that his major upper extremity was his left, and that he had reduced feeling in his service- connected finger, along with intermittent aching and throbbing. He also indicated that numbness would increase with activity, as when he was performing his employment tasks (cleaning), but that he had not seen any doctor for treatment of these complaints. The veteran's finger disability has been evaluated under the provisions of Diagnostic Code 8515, which concerns paralysis of the median nerve. Under this Code, complete paralysis affecting the minor extremity is rated 60 percent disabling. Complete paralysis may be manifested by the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. Severe incomplete paralysis affecting the minor extremity is rated 40 percent disabling; moderate incomplete paralysis affecting the minor extremity is rated 20 percent disabling; and mild incomplete paralysis affecting the minor extremity is rated 10 percent disabling. Although this particular code does not have provisions for assigning a non-compensable rating, in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Under the circumstances described above, the Board is of the view that the veteran's right middle finger disability does not warrant the assignment of a compensable disability evaluation. Essentially none of the medical evidence, which spans 20 years, shows any treatment for this disability, the veteran has not indicated that he sought treatment for it, and, when recently examined, the finger exhibited no limitation of motion, and no motor or sensory deficit. Moreover, the scar, about which the veteran has never complained of any difficulty, has not been described as tender, nor shown to interfere in any way with the function of the veteran's digit. While the veteran has testified that he experiences intermittent discomfort and numbness, this has not been severe enough for him to seek medical attention, nor did he indicate that it actually interfered with his employment. In view of this, the Board finds that the veteran's finger disability is not shown to be productive of even mild incomplete paralysis of the median nerve. Accordingly, a compensable evaluation for this disability is not warranted. In reaching this decision, the Board also notes that, under the provisions of Diagnostic Code 5226, a 10 percent rating may be assigned when there is either favorable or unfavorably ankylosis of the middle finger. As indicated above, however, the evidence shows that the veteran has no limitation of motion of his finger, and, therefore, a compensable evaluation under this code is not warranted. Similarly, a 10 percent rating could be assigned for superficial scars that are poorly nourished with repeated ulceration, or which are tender and painful on objective demonstration. See Diagnostic Codes 7803, 7804. The veteran's scar, however, has been consistently described, by those physicians examining it, as well healed and non-tender, and therefore, a compensable evaluation under those codes is also not warranted. ORDER Service connection for a skin disability is denied. Service connection for a chronic sinus disability is denied. Entitlement to an increased (compensable) rating for the residuals of a laceration of the right middle finger, with severed digital nerve branches, is denied. ANDREW J. MULLEN Member, Board of Veterans' Appeals