BVA9503515 DOCKET NO. 93-10 478 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a compensable evaluation for internal hemorrhoids. 2. Entitlement to service connection for residuals of a head injury. 3. Entitlement to service connection for chronic residuals of a left ankle sprain. 4. Entitlement to service connection for a disability manifested by chest pain. 5. Entitlement to service connection for residuals of exposure to asbestos. 6. Entitlement to service connection for gastrointestinal disability. 7. Entitlement to service connection for residuals of broken toes. 8. Entitlement to service connection for arthritis of multiple joints. 9. Entitlement to service connection for right ankle disability. 10. Entitlement to service connection for defective hearing. 11. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. S. Freret, Counsel INTRODUCTION The appellant had active military service from July 1974 to July 1978 and from November 1980 to November 1982. This appeal comes before the Board of Veterans' Appeals (Board) from an April 1990 rating decision by the Department of Veterans Affairs (VA) Atlanta, Georgia, Regional Office (RO), which granted service connection for internal hemorrhoids, assigning a noncompensable evaluation, and denied entitlement to service connection for residuals of a head injury, chronic residuals of a left ankle sprain, a disability manifested by chest pain, residuals of exposure to asbestos, gastrointestinal disability, residuals of broken toes, arthritis of multiple joints, right ankle disability, defective hearing, and tinnitus. A January 24, 1991, rating decision by the RO also denied service connection for residuals of exposure to asbestos. The appellant appears to raise the issue of entitlement to service connection for disabilities in the right and left knees and for hip disability due to damage to the knees and ankles. These claims are not inextricably intertwined with the current claim and have not been developed for appellate consideration by the RO. Therefore, this matter is referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The appellant claims that his service-connected internal hemorrhoids are more severely disabling than currently evaluated, thereby warranting a compensable rating. He also asserts that he has residuals of a head injury, chronic residuals of a left ankle sprain, a disability manifested by chest pain, residuals of exposure to asbestos, gastrointestinal disability, residuals of broken toes, arthritis of multiple joints, right ankle disability, defective hearing, and tinnitus, each of which had its origins during his active military service. 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 appellant'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 evidence pertaining to the appellant's service- connected internal hemorrhoids more nearly approximates the criteria for a 10 percent evaluation under the applicable diagnostic code. Therefore, applying the provisions of 38 C.F.R. § 4.7 (1994), a 10 percent evaluation is granted for internal hemorrhoids. 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 there is an approximate balance of the positive and negative evidence pertaining to the issue of entitlement to service connection for residuals of a head injury. Because the Board is required by statute to extend the benefit of the doubt to a veteran when the evidence is in equipoise, we find that service connection is warranted for residuals of a head injury. 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 appellant's claims of entitlement to service connection for chronic residuals of a left ankle sprain and for a disability manifested by chest pain. It is also the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims of entitlement to service connection for residuals of exposure to asbestos, gastrointestinal disability, residuals of broken toes, arthritis of multiple joints, right ankle disability, defective hearing, and tinnitus are well-grounded. FINDINGS OF FACT 1. The appellant's hemorrhoidal condition is shown to be manifested by two external hemorrhoids, one large and one small without current inflammation, and three small internal hemorrhoids. 2. The appellant is shown to have a small tender lump on the right lateral skull area as a residual of a head injury in service. 3. A left ankle sprain in service is shown to have been an acute and transitory injury that resolved without residuals. 4. Chest pains in service are not shown to have been associated with an identifiable disability. 5. Although the appellant has complaints involving respiratory problems, indigestion, residuals of broken toes, multiple joint pain, right ankle disability, hearing loss, and ringing in the ears, no evidence has been submitted which indicates that he has residuals of exposure to asbestos, gastrointestinal disability, residuals of broken toes, arthritis of multiple joints, right ankle disability, defective hearing, or tinnitus that is related to service, or is due to any in-service occurrence or event. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation of 10 percent for hemorrhoids are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.114, Diagnostic Code 7336 (1994). 2. Residuals of a head injury were incurred in military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991). 3. Chronic residuals of a left ankle sprain were not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303(b) (1994). 4. A disability manifested by chest pains was not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991). 5. The appellant has not submitted a well-grounded claim for service connection for residuals of exposure to asbestos, gastrointestinal disability, residuals of broken toes, arthritis of multiple joints, right ankle disability, defective hearing, and tinnitus. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 1991), 38 C.F.R. §§ 3.307, 3.309, (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented well-grounded claims with regards to the issues of entitlement to a compensable evaluation for internal hemorrhoids and entitlement to service connection for residuals of a head injury, chronic residuals of a left ankle sprain, and a disability manifested by chest pain. The facts relevant to this appeal have been properly developed, and the obligation of the VA to assist the appellant in the development of these claims is satisfied. Id. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history. 38 C.F.R. § 4.2 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the appellant's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10 (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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1994). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). For a 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1994). I. Hemorrhoids The appellant argues that he should be assigned a compensable evaluation for his service-connected hemorrhoids that are manifested by both internal and external hemorrhoids, itching and swelling of the external hemorrhoids, and constant discomfort, with passage of stools very painful due to the swelling. When either internal or external hemorrhoids are associated with persistent bleeding and secondary anemia, or with fissures, a 20 percent evaluation is assigned. If the hemorrhoids are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, a 10 percent evaluation is assigned. For mild or moderate hemorrhoids, a noncompensable evaluation is assigned. 38 C.F.R. § 4.114, Diagnostic Code 7336 (1994). Review of the appellant's service medical records shows that he was treated for rectal bleeding in March 1981. At a VA medical examination conducted in January 1990, rectal examination revealed internal hemorrhoids at 6:00 and 11:00, and a diagnosis of internal hemorrhoids was reported. Rectal examination conducted as part of a December 1990 VA medical examination revealed two non-inflamed, external hemorrhoids on the right side, with a large one superior and the smaller one inferior. Three small, internal hemorrhoids were noted at 4:00, 7:00, and 11:00. The diagnosis was external and internal hemorrhoids. After evaluating the clinical findings from the two VA rectal examination conducted in 1990, the Board concludes that the evidence shows an increase in the severity of the appellant's hemorrhoidal condition, as evidence by the two external and three internal hemorrhoids noted in December 1990. The veteran complains of bleeding from internal hemorrhoids, as reported by the VA physician in December 1990. he also complains of pain and swelling with respect to the external hemorrhoids. Because these findings appear to more closely resemble those for a 10 percent evaluation under Diagnostic Code 7336, the Board finds that under the provisions of 38 C.F.R. § 4.7 (1994) a 10 percent rating is warranted for the appellant's hemorrhoids. Absent medical evidence that the appellant's hemorrhoids are associated with persistent bleeding and secondary anemia, or with fissures, a 20 percent evaluation is not warranted. II. Residuals of a Head Injury Service medical records show that the appellant was treated for a head injury in June 1978 after being struck on the right side of the head by a falling pipe that caused a 1/2" laceration on the right scalp. At the January 1990 VA medical examination, a small, tender lump was noted on the right lateral skull area. A diagnosis of residual of a head wound was reported. After review of the evidence presented, the Board is of the opinion that there is an approximate balance of the positive and negative evidence as to whether the appellant's current head disability is related to the head injury he sustained in June 1978. As the Board is required by the provisions of 38 U.S.C.A. § 5107(b) (West 1991) to extend the benefit of the doubt to the appellant when the evidence is in equipoise, we find that the June 1978 laceration of the right scalp may have produced the currently shown tender lump on the right lateral skull area. Therefore, service connection is warranted for residuals of a head injury in service. III. Residuals of a Left Ankle Sprain The appellant maintains that he sustained a fracture of the left ankle in service that has left him with a physically deformed ankle that produces a feeling of instability in the left foot and symptoms of stiffness, soreness, and swelling in the left ankle and left foot. Service medical records reveal that the appellant was treated for a left ankle injury in December 1974, after twisting it playing basketball. The medical records indicate that X-rays taken when the appellant first appeared for treatment were negative, but that he was called back for additional X-rays five days later because someone felt there was a fracture of the ankle. There was slight swelling and tenderness on the medial and lateral malleolus and dorsum of the foot. The second set of X-rays was also negative, and the assessment was a left ankle sprain. He was seen again in April 1975 with a complaint of continuing pain and swelling associated with the four month old left ankle sprain. Examination of the ankle in April 1975 was reported to be within normal limits except for tenderness noted over the medial malleolus. Subsequently dated service medical records show no further complaints or treatment for any left ankle disability, and the appellant's separation medical examination from his first period of service, conducted in July 1978, revealed no complaint or finding of any left ankle disability. The service medical records from his second period of service, including an October 1980 entrance medical examination report and a November 1982 separation medical examination report, also do not indicate any left ankle disability. Although the appellant has described stiffness, soreness, swelling, and instability in the left ankle in statements since 1989 and at the January 1990 VA medical examination, examination of the musculoskeletal system in January 1990 was negative, and X-ray examination of the left ankle at that time revealed no evidence of fracture, dislocation, or of any other significant bone or joint injury or disease. The pertinent diagnosis of "residue of previous fracture of the left ankle" was apparently based on the history as provided by the veteran. After careful and longitudinal review of the evidence, the Board has determined that the absence of any complaints or clinical findings of left ankle disability from 1975 to 1989, along with negative X-rays of the ankle in January 1990 demonstrates that the left ankle sprain the appellant sustained in December 1974 resolved without residuals. Although the appellant alleges that the left ankle was broken in service, the medical evidence does not support this contention. Hence, we are unable to identify a basis upon which to grant service connection for residuals of a left ankle sprain or other left ankle disability. IV. Disability Manifested by Chest Pain The appellant maintains that he has a disability manifested by chest pains that began in service. He describes current manifestations of infrequent chest pains that can be severe and cause loss of breath, dizziness, and tingling in the left upper extremity. The service medical records show treatment for complaints of chest pain in June and July 1976. A chest X-ray in June 1976 was considered normal. In July 1976, the appellant reported substernal chest pain of two to ten minutes duration on exertion, which was accompanied on one occasion a year before by pain to the left shoulder and tingling down the left arm to the hand. He indicated that the chest pains, described as dull pressure ache of varying degrees (sometimes producing "standing on the chest sensation"), with shortness of breath, now recurred weekly or biweekly for one to three minutes at a time and that the chest pains usually followed exercise or heavy smoking. He stated that eating did not cause the pains, and he complained of coughing up blood. The assessment was rule out a hiatal hernia. An upper gastrointestinal X-ray series in July 1976 was within normal limits. He was seen again in January 1977 for evaluation of chest pain since July 1976, and he stated that he had recently observed obvious palpation of the left side of the chest during episodes of chest pain. He reported that the pain had first occurred when he was about 15 years old and that a physician at that time had told him that there was some possibility of a hiatal hernia, but tests had been negative. He described a distinct swelling that puffed out around the left fifth anterior thoracic interspace, which remained during and for some time after the pain episodes, and which was accompanied by pulsations below the muscle. He gave a history of having being struck behind his left posterior chest with a two by four piece of wood during training, after which he initially felt okay but then experienced loss of breath and fell unconscious several minutes later. He stated that he had been taken to a hospital but that he had recovered by the time he arrived there and was released. His blood pressure was 136/76 on January 10, 1977, and the assessment was recurrent chest pain, diagnosis deferred. A blood pressure reading of 118/72 was recorded three days later, and a diagnosis of "normal examination" was reported at that time. The July 1978 service medical examination conducted in conjunction with the appellant's separation from his first period of service revealed no complaint or finding of any disability manifested by chest pain. His blood pressure at that examination was 100/70. During his second period of service, the appellant complained of soreness and a lump on his chest on July 27, 1981. Examination revealed a large mass on the left side of the chest, and the appellant indicated by way of history that he had not experienced any trauma and that he had been coughing for three weeks. The impression was a questionable muscle strain. A medical record dated one day later indicated a one-week cough accompanied by phlegm and pain in the area of the left chest, without trauma. Examination revealed tenderness with palpation at the left second rib, 2 cm. to the left costal junction. An X-ray was negative. The assessment was a questionable palpable mass. He returned for treatment in August 1981, still complaining of a palpable lump in the left chest, and physical examination revealed a palpable lump at the fourth rib on the mid clavicle line, fixed, which was described as feeling like the rib. X-rays showed nothing that corresponded to the lump. The assessment was that the lump was probably the rib. The appellant's blood pressure at a November 1982 service medical examination conducted in conjunction with his second separation from service was 114/72. The January 1990 VA medical examination revealed no findings of a lump or of any disability manifested by chest pain. The cardiovascular, lymphatic and hemic, and digestive systems were negative, as was the respiratory system, except for an occasional crepitant rale. An upper gastrointestinal X-ray series taken in January 1990 was normal, and a chest X-ray taken at the December 1990 VA medical examination revealed a normal chest. The veteran's blood pressure was 114/82, and the cardiovascular system was described as essentially negative. Although the appellant was treated for complaints of chest pains associated with a palpable mass in the left chest area during service, there was no identifiable disability noted. The medical evidence since service fails to demonstrate that the appellant has a recognizable disability manifested by chest pain at the present time. Absent evidence establishing a disability or disease entity, related to military service, to account for the appellant's current complaints of chest pain, the Board is unable to identify a basis to grant service connection for the appellant's reported chest pains. V. Residuals of Asbestos Exposure, Gastrointestinal Disability, Residuals of Broken Toes, Arthritis of Multiple Joints, Right Ankle Disability, Defective Hearing, Tinnitus The appellant contends that he has the following disabilities: respiratory disability due to exposure to asbestos while sleeping under torn lagging on board ships which is manifested by a cough that produces phlegm and occasional blood; gastrointestinal disability that produces bloating and heartburn associated with indigestion, which the appellant claims he was told was probably a hiatal hernia; residuals of broken toes that he claims he experienced on board ships; arthritis of multiple joints that he argues is productive of aching in several joints (ankles, knees, and hips) and which worsens in cold and damp weather; right ankle disability that he claims began in service; and hearing loss and tinnitus that he asserts began after he was struck in the head by the pipe in June 1978. The threshold question to be answered at the outset of the analysis of any issue is whether a well-grounded claim has been submitted; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). A veteran has, by statute, the duty to submit evidence that a claim is well-grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107(a) (West 1991). Where such evidence is not submitted, the claim is not well-grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). If a particular claim is not well-grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim since such development would be futile. Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well-grounded, except where such assertions are inherently incredible. See King v. Brown, 5 Vet.App. 19 (1993). In this case, the evidentiary assertions with regard to the appellant's claims of entitlement to service connection for residuals of exposure to asbestos, gastrointestinal disability, residuals of broken toes, arthritis of multiple joints, right ankle disability, defective hearing, and tinnitus are inherently incredible when viewed in the context of the total record. The appellant's service medical records show no complaint or finding of residuals of exposure to asbestos, gastrointestinal disability, residuals of broken toes, arthritis of multiple joints, right ankle disability, defective hearing, or tinnitus. At neither of his service separation examinations, in July 1978 and November 1982, did the appellant make reference to any of these claimed disabilities. The medical evidence since service also fails to demonstrate that the appellant has residuals of exposure to asbestos, gastrointestinal disability, residuals of broken toes, arthritis of multiple joints, right ankle disability, defective hearing, and tinnitus. The January 1990 VA medical examination did not reveal any findings to indicate the presence of residuals of exposure to asbestos, gastrointestinal disability, residuals of broken toes, arthritis of multiple joints, right ankle disability, defective hearing, and tinnitus. An upper gastrointestinal X-ray series was normal, X-rays of the right foot and toes, the left knee, the left ankle , and the left toes showed no evidence of an fractures or degenerative changes. A December 1990 VA pulmonary examination revealed adequate breath sounds and chest excursions and no rales. The trapezius muscles were not taut. A chest X-ray in December 1990 was normal, showing no findings suggestive of asbestos exposure. As noted above, to establish service connection there needs to be a showing that there is a current disability, for which service connection is sought, which is, in some way, causally related to service. No such showing has been made as to residuals of exposure to asbestos, gastrointestinal disability, residuals of broken toes, arthritis of multiple joints, right ankle disability, defective hearing, and tinnitus.. There is nothing in the clinical evidence that shows the presence of any of these disabilities either during service thereafter. The appellant has failed to provide any clinical evidence of residuals of exposure to asbestos, gastrointestinal disability, residuals of broken toes, arthritis of multiple joints, right ankle disability, defective hearing, and tinnitus that have a relationship to service or to a service-connected disability. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Although the appellant now has a cough with phlegm, there is no objective evidence of medical causality from any incident in service (claimed exposure to asbestos) or any service-connected disability, and as such, the claim of entitlement to service connection for residuals of exposure to asbestos is not well- grounded. See Grivois v. Brown, 6 Vet. App. 136 (1994). The appellant lacks medical expertise and is not qualified to render an opinion regarding a causal relationship between current symptomatology and any claimed in-service onset or a secondary relationship to his service-connected disabilities. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Furthermore, lay assertions of medical causation cannot constitute evidence to render a claim well-grounded. Grottveit v. Brown, 5 Vet.App. 91, 93, (1993). Where the determination issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Id. Where there is no medical evidence of the claimed disorder during service, where there is no medical evidence linking the claimed disorder to service or an in-service event or occurrence, or where the disorders are not currently demonstrated, the claim is not well-grounded. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Montgomery v. Brown, 4 Vet.App. 343 (1993). Because the evidence of record does not demonstrate that the appellant had residuals of exposure to asbestos, gastrointestinal disability, residuals of broken toes, arthritis of multiple joints, right ankle disability, defective hearing, and tinnitus during service, or that any of these disorders has been present thereafter, those claims are not well-grounded. ORDER Service connection is granted for residuals of a head laceration. A 10 percent evaluation is granted for internal hemorrhoids, subject to the laws and regulation governing the award of monetary benefits. Service connection is denied for chronic residuals of a left ankle sprain and a disability manifested by chest pain. Having found the claims of entitlement to service connection for residuals of exposure to asbestos, gastrointestinal disability, residuals of broken toes, arthritis of multiple joints, right ankle disability, defective hearing, and tinnitus to be not well- grounded, the appeal as to those issues is dismissed, and the rating actions of April 5, 1990, and January 24, 1991, are vacated as to those issues. BETTINA S. CALLAWAY 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 so assigned. 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 that 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 that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.