BVA9506061 DOCKET NO. 91-44 869 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a duodenal ulcer as secondary to residuals of right subcutaneous mastectomy for right gynecomastia. 2. Entitlement to an increased (compensable) evaluation for residuals of right subcutaneous mastectomy for right gynecomastia. 3. Entitlement to a temporary total rating under 38 C.F.R. 4.29 based on hospitalization from September 29, 1993, through October 27, 1993. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from June 1966 to June 1968. This appeal arises from Department of Veterans Affairs (VA) Regional Office (RO) rating determinations from Jackson, Mississippi. Service connection has not been established for any disorder other than residuals of right subcutaneous mastectomy for right gynecomastia. Nonservice-connected conditions include insulin- dependent diabetes mellitus, hypertension, hiatal hernia, a psychiatric disorder and chronic alcohol abuse. In an informal hearing presentation dated in February 1995, the veteran's representative raised the issue of a permanent and total disability rating for pension purposes. This issue has not been properly developed or certified for appellate consideration, and jurisdiction will not be taken over it. This matter is referred to the RO for such further action as is deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL Essentially, it is contended that service connection is warranted for a duodenal ulcer in that this disorder is secondary to service-connected residuals of right subcutaneous mastectomy for right gynecomastia. It is also asserted that a compensable rating is warranted for the gynecomastia. Specifically, the veteran complains of pain in the left shoulder and on the right side of the chest when he walks or turns over in bed. It is contended that he should be granted a temporary total rating based on hospitalization from September 29, 1993, through October 27, 1993. 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's claim for service connection for a duodenal ulcer as secondary to residuals of right subcutaneous mastectomy is not well-grounded. The preponderance of the evidence supports, however, a 10 percent rating for right gynecomastia. The evidence does not support entitlement to a temporary total rating under 38 C.F.R. § 4.29 (1994) based on hospitalization from September 29, 1993, through October 27, 1993. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran has failed to submit evidence or to specifically identify relevant documents to justify a belief by a fair and impartial individual that the claim of service connection for a duodenal ulcer as secondary to service-connected right gynecomastia is plausible as there is no objective medical evidence supporting the veteran's contention. 3. On VA examinations in March 1993, the veteran reported that the right lateral breast scar was painful and tender, and he said that it itches; on VA examination in August 1994, he again reported pain associated with this scar. 4. The veteran was hospitalized from September 29, 1993, through October 27, 1993, primarily for treatment of alcohol abuse and dependence. Service connection is not in effect for this disorder. CONCLUSIONS OF LAW 1. The claim of service connection for a duodenal ulcer as secondary to residuals of right subcutaneous mastectomy for right gynecomastia, as a matter of law, is not well-grounded. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 3.156(a) (1994). 2. The schedular requirements have been met for a rating of 10 percent for residuals of right subcutaneous mastectomy for right gynecomastia. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.7, 4.20 and Part 4 Diagnostic Codes 7912, 7804 (1994). 3. A temporary total rating based on hospitalization from September 29, 1993, through October 27, 1993, is denied. 38 C.F.R. § 4.29 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION Entitlement to Service Connection for a Duodenal Ulcer as Secondary to Service-Connected Residuals of Right Subcutaneous Mastectomy for Right Gynecomastia With regard to this issue, the threshold determination to be made is whether the veteran has submitted evidence is support of his claim which is "sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded." 38 U.S.C.A. § 5107(a) (1994). In its interpretation of this statute, the United States Court of Veterans' Appeals (Court), in Murphy v. Derwinski, 1 Vet.App. 78 (1990), has held that where the veteran is unable to submit a well-grounded claim - one that is plausible or meritorious - his appeal must fail. In legal terminology, this is the veteran's "burden of proof" - he must submit evidence upon which a "belief" may be established by one who is "fair and impartial," that his claim has merit, that it is plausible. We note that under this statute the VA has no duty to assist the veteran when it has been determined that his claim is not well-grounded (38 U.S.C.A. § 5107(a)), and there is no shift in the burden of proof which requires the VA to show that the veteran's claim is not meritorious simply because he made a claim. 38 U.S.C.A. § 5107(b) (1993). It is the veteran's contention that he incurred a duodenal ulcer secondary to his service-connected residuals of right subcutaneous mastectomy for right breast gynecomastia. As a layperson, he is not competent as to matters of medical causation and diagnosis. Grottveit v. Brown, 5 Vet. App. 91 (1993). The service records show that the veteran was seen on more than once occasion in 1968 for an enlarged right breast, and post service records show that he underwent a right gynecomastia in March 1991. Postbulbar duodenal ulcers were reported in June 1991 after complaint of abdominal pain. Subsequent records show upon upper gastrointestinal X-ray series in March 1993, a small sliding hiatal hernia and a small soft tissue density in the lesser curvature of the body of the stomach was seen. The diagnosis was probable duodenal ulcer disease. The crucial determination before the Board is to determine whether the veteran has submitted evidence sufficient to demonstrate to a "fair and impartial individual" that he now has a duodenal ulcer as a result of his service-connected right gynecomastia. While we have noted this contention, there is no competent or medical evidence of record which supports this assertion. If service records do not show the claimed disability and there is no competent or medical evidence to link a current disability with events in service or with a service-connected disability, the claim is not well-grounded. See Montgomery v. Brown, 4 Vet.App. 343 (1993). Clearly, the veteran's claim is not well-grounded and has no apparent merit. We note that different anatomical areas are involved. It is not plausible or meritorious, and although we have noted the representative's assertion that the claim should be remanded for an examination and opinion as to the etiology of the veteran's duodenal ulcer, we conclude that such development is unnecessary for the reasons given above. An Increased Evaluation for Residuals of Right Subcutaneous Mastectomy for Right Gynecomastia 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. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including the service medical records. 38 C.F.R. §§ 4.2, 4.41 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment as it affects the veteran's to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (1994). It is contended that a compensable evaluation is warranted for the veteran's residuals of right subcutaneous mastectomy for right gynecomastia. A brief history of the events preceding this appeal is as follows: Service connection for unilateral (right) breast enlargement was established upon rating determination in May 1991. A noncompensable evaluation, effective from July 23, 1990, was assigned. The record shows that the veteran underwent right subcutaneous mastectomy in March 1991, and upon rating action in June 1991, a temporary total rating was assigned under 38 C.F.R. 4.30 (1994) based on convalescence for a period of one month. The noncompensable evaluation was to be restored from May 1, 1991. Numerous rating determinations subsequent to that decision have confirmed and continued the noncompensable evaluation. The veteran's appeal continues. Under the applicable diagnostic criteria used by VA for assessing the severity of service-connected disorders set forth in the Schedule for Rating Disabilities (Schedule) (38 C.F.R. Part 4), the veteran's right subcutaneous mastectomy for right gynecomastia is rated by analogy, to Diagnostic Code 7912 regarding pluriglandular syndromes. This code provides that this disorder is rated according to the major manifestations. The most recent clinical evidence regarding the veteran's service-connected residuals of right subcutaneous mastectomy for right gynecomastia is provided by VA records from 1991 through 1994. These documents include a hospital summary regarding the surgery which was conducted in March 1991, follow-up treatment records and VA examination reports from May 1992, March 1993 and August 1994. The record shows that the right breast surgery was accomplished without complication, and post surgery records indicate that the postoperative course was uneventful. Examination in May 1992 was essentially negative. It was noted that the surgery scar was well-healed, with no tenderness and no fixation of the scar or muscle loss. Two examinations were conducted in March 1993. On the first examination conducted on March 4, 1993, the examiner noted that the incisional scar was well-healed. It was described as a two inch curve under the right nipple without gross deformity. (An additional three inch anterior scar in the left shoulder area for removal of a lipoma in March 1991 was noted. This is a nonservice-connected disability.) Upon examination on March 8, 1993, the veteran complained that the surgery scar was tender and painful although the examiner noted that tenderness was not indicated when the scar was palpated. At another scar examination in August 1994, the examiner noted that a 7 cm. (approximate) specimen of breast tissue was removed in the March 1991 surgery. The veteran said that for the past year he experienced pain in the left shoulder and on the right side of the chest when he walked or turned over in bed. Examination revealed a 4 cm. well-healed scar of the right breast. There was a scar on the left pectoral groove which was slightly hypertrophic and keloids were noted on the anterior chest. There was no rib tenderness. His findings were chest wall pain, bilateral status post resection of right gynecomastia with well-healed wounds and no residual breast enlargement. This evidence indicates that the major manifestation of the veteran's March 1991 surgery is his complaint of a painful and tender scar. Resolving reasonable doubt in his favor, we conclude that a 10 percent is warranted for his service-connected disorder under Diagnostic Code 7804. The evidence above does not suggest that the veteran's service-connected residuals of right gynecomastia presents such an exceptional or unusual disability picture so as to render impractical the assignment of an extraschedular evaluation under 38 C.F.R.§ 3.321(b)(1), as he has not been frequently hospitalized for treatment of his condition and the schedular criteria are adequate to rate this disorder. Entitlement to a Temporary Total Rating Under 38 C.F.R.§ 4.29 Based on Hospitalization from September 29, 1993, through October 27, 1993 The medical evidence includes a summary of the September-October 1993 hospitalization. That summary indicates that the veteran was admitted to the VA Medical Hospital in Jackson, Mississippi, on October 27, 1993, for alcohol rehabilitation. He admitted to a 35 year history of alcohol abuse and at least a five year history of alcohol dependence. It was noted that he was admitted to a chemical dependency treatment inpatient program. He successfully completed the program and was discharged on October 27, 1993. Treatment for the veteran's right gynecomastia is not indicated. Clearly, this medical evidence does not demonstrate that the veteran's hospitalization from September 29, 1993, through October 27, 1993, was for treatment of the service-connected gynecomastia. Accordingly, a temporary total rating based on hospitalization for this period is not appropriate. ORDER Entitlement to service connection for a duodenal ulcer as secondary to service-connected right gynecomastia is dismissed. A 10 percent evaluation for residuals of right subcutaneous mastectomy for right gynecomastia is granted, subject to the criteria governing the award of monetary benefits. A temporary total rating based on hospitalization from September 29, 1993, to October 27, 1993, is denied. SAMUEL W. WARNER 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.