Citation Nr: 0007155 Decision Date: 03/16/00 Archive Date: 03/23/00 DOCKET NO. 98-08 278A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased original evaluation for a hypothyroid disability, currently evaluated as 10 percent. 2. Entitlement to service connection for a hemorrhoid disability. 3. Entitlement to an original compensable evaluation for a scar disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Crowley, Associate Counsel INTRODUCTION The veteran served on active duty from June 1990 to June 1997. This appeal arises from a rating decision of February 1998 by the Montgomery, Alabama, Regional Office (RO), which assigned a 10 percent evaluation for a disability characterized as a status post thyroidectomy disorder. The issue of an increased original evaluation for a hypothyroid disability, currently evaluated as 10 percent, is addressed in the Remand portion of the opinion. FINDINGS OF FACT 1. All of the evidence necessary for the equitable disposition of the veteran's claim for a scar disability has been developed. 2. A hemorrhoid disability is not shown. 3. A scar disability is manifested primarily by a 10.5 centimeter scar on the anterior portion of the veteran's neck. CONCLUSIONS OF LAW 1. A claim for entitlement to service connection for hemorrhoids is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for an original 10 percent evaluation for a neck scar disability are met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. pt. 4, §§ 4.118, Code 7800 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for a hemorrhoid disability. The threshold question that must be resolved at the outset of the analysis of any issue is whether each one of the appealed claims is well grounded; that is, whether it is plausible, meritorious on its own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C.A. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court) issued a decision holding that VA cannot assist a claimant in developing a claim that is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). An appellant has, by statute, the duty to submit evidence that a claim is well-grounded, which means that 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). When such type of evidence is not submitted, the initial burden placed on the appellant is not met. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.305 (1999). Establishing a well-grounded claim for service connection for a particular disability requires more than an allegation that the particular disability had its onset in service. It requires evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible and capable of substantiation. See Tirpak v. Derwinski, 2 Vet.App. 609, 610 (1992); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The kind of evidence needed to make a claim well grounded depends upon the types of issues presented by a claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). For some factual issues, competent lay evidence may be sufficient. However, where the claim involves issues of medical fact, such as medical causation or medical diagnoses, competent medical evidence is required. Id. at 93. Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or is beyond the competence of the person making the assertion. See King v. Brown, 5 Vet.App. 19 (1993). The three elements of a "well grounded" claim for direct service connection normally are: (1) evidence of a current disability as provided by a medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the in-service disease or injury and the current disability as provided by competent medical evidence. See Caluza v. Brown, 7 Vet.App. 498 (1995); see also 38 U.S.C.A. § 1110 (West 1991 & Supp. 1998); 38 C.F.R. § 3.303 (1998); Layno v. Brown, 6 Vet.App. 465, 470 (1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992); cf. Godfrey v. Brown, 7 Vet. App. 398,406 (1995) (where service connection is based on continuity of symptomatology under 38 C.F.R. § 3.303(b), competent medical evidence is not necessarily required to make the claim well grounded.) The veteran's service medical records (SMRs) do not reflect treatment, diagnosis, or complaints of hemorrhoids. The report of a medical examination dated March 1992 shows that the results of a hemoccult examination were apparently negative. An SMR dated April 1997 shows that the veteran was prescribed Tucks pads and hydrocortisone. A report of his separation medical examination, of the same date, also clinically evaluates his anus and rectum as normal. The medical evidence subsequent to service shows that the veteran was diagnosed with hemorrhoids in the report of his January 1998 medical examination. The examiner of the veteran's anus and rectum examination dated May 1998 reported that there were no obvious protruded hemorrhoids on examination. There was no obvious fissure identified on digital rectal examination. There was no obvious palpable hemorrhoid. There was voiced tenderness especially at approximately 3 and 9 o' clock on examination. Hemoccult secretions were reportedly negative. We note that the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C.A. §§ 1110, 1131 (West 1991); see Degmetich v. Brown, 104 F.3d 1328 (1997) (holding that Secretary's and Court's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Caluza v. Brown, 7 Vet.App. 498, 505 (1995); Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992); Rabideau v Derwinski, 2 Vet.App. 141, 143 (1992). Thus, as the current medical evidence does not show that the veteran manifests a current hemorrhoid disability, his claim is not well grounded and must be denied. We note that the veteran contends that he was not given rectal examinations, and in essence, that the examiners missed his hemorrhoid disability. We also note that the veteran was seen in service and prescribed Tucks pads. However, even if we were to give the veteran the benefit of the doubt with regard to an in-service incurrence of hemorrhoids, the evidence shows only that he previously manifested a hemorrhoid disorder in January 1998. The findings of the May 1998 anus and rectum examination do not show that such a diagnosis was made, or that there were obvious protruded or palpable hemorrhoids, or fissures, nor that they are related to service or to continuous symptoms since service. Although the RO did not specifically state that it denied the veteran's claims on the basis that they were not well grounded, the Board concludes that this error was harmless. Cf. Edenfield v. Brown, 8 Vet. App. 384, 390 (1995) (where a claim is not well grounded, the court should affirm an 'erroneous' BVA decision on the merits, unless to do so would prejudice the appellant). We note that the Court has held that when a claimant fails to submit a well-grounded claim under 38 U.S.C.A § 5107(a) (West 1991), VA has a duty under 38 U.S.C.A. § 5103(a) (West 1991) to advise the claimant of the evidence required to complete his application, in circumstances in which the claimant has referenced other known and existing evidence. Robinette v. Brown, 8 Vet. App. 69 (1995); see also Epps v. Brown, 9 Vet. App. 341 (1996). In the case at hand, the Board finds that this duty is not triggered. In addition, in this case, the supplemental statement of the case advised the veteran of the requirements of a well-grounded claim. Therefore, as the current medical evidence of record does not show that a hemorrhoid disability is currently manifested, the veteran's claim must accordingly fail. II. Entitlement to an original compensable evaluation for a scar disability. Initially, the Board finds that the veteran's claim is well grounded under 38 U.S.C.A. § 5107(a) (West 1991). He has not alleged that any records of probative value that may be obtained, and which have not already been sought by VA or associated with his claims folder, are available. The Board accordingly finds that the duty to assist the veteran, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied in this case. The veteran established service connection for a disability characterized as "status post thyroidectomy" in a rating action dated February 1998. The RO initially assigned a 10 percent rating for the veteran's hypothyroidism disorder. The veteran disagreed with that evaluation. The RO subsequently established a noncompensable evaluation for the veteran's scar disorder. The severity of a scar disability is ascertained, for VA rating purposes, by application of the criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. § Part 4 (1999) (hereinafter Schedule). These criteria are based on the average impairment of earning capacity, 38 U.S.C.A. § 1155 (West 1991), and utilize separate diagnostic codes to identify the various disabilities. 38 C.F.R. Part 4 (1999). Diagnostic Code 7800 contemplates disfiguring scars of the head, face or neck. Scars that have a complete or exceptionally repugnant deformity of one side of the face, or those that exhibit marked or repugnant bilateral disfigurement, are evaluated as 50 percent disabling; those that are severe, especially if producing a marked and unsightly deformity of the eyelids, lips or auricles, contemplate a 30 percent evaluation. Moderate scars that are disfiguring are evaluated as 10 percent disabling. Scars that are slight in nature are noncompensable under Diagnostic Code 7800. The results of the veteran's May 1998 rating examination reveal that the veteran manifests a well healed surgical scar, on the transverse portion of the low anterior neck. It measured 10.5 centimeters in length. There was no ulceration or depression, or obvious loss of underlying tissue. There was also no inflammation or edema. The scar was described by the examiner as "obvious, but not causing any gross disfigurement." There was no adherence to the underlying structures or abnormal texture, and no tenderness. There was some mild reduced pinprick sensation in the immediate sensation of the scar. Although the evidence does not show that a gross disfigurement is present, we find that the evidence of the veteran's scar disability shows that it most closely approximates a 10 percent evaluation. 38 C.F.R. § 4.7 (1999). That is, the veteran has a 10.5 centimeter scar on the front portion of his neck that is obviously visible. However, we also find that a greater evaluation is not warranted. Although the veteran's scar is obvious, there is no evidence supporting a severe scar disability, or one that produces a marked and unsightly deformity of the eyelids, lips or auricles, so that a 30 percent evaluation is warranted. In addition, we do not find any evidence to show that the veteran's scar is complete or an exceptionally repugnant deformity of one side of the face, or that it exhibits marked or repugnant bilateral disfigurement, so that a 50 percent evaluation is warranted. In fact, the examiner of his May 1998 VA rating examination specifically found that although the scar was obvious, it was not causing any gross disfigurement. Thus, an evaluation greater than 10 percent for a scar disability is simply not warranted by the evidence of record. Finally, we also note that review of the record does not reveal that the RO expressly considered referral of this issue to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1998). This regulation provides that, to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the above for assignment of an extraschedular evaluation commensurate with average earning capacity impairment. The United States Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1998) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to read liberally all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet.App. 88 (1996). The Court has further held that the Board may affirm the RO's conclusion that referral is not required, or may reach that conclusion on its own, Bagwell v. Brown, 9 Vet. App. 337, 339, and that it must address referral under 38 C.F.R. § 3.321(b)(1) (1998) only where circumstances are presented which the Director, Compensation and Pension Service, might consider exceptional or unusual. Shipwash v. Brown, 8 Vet.App. 218, 227 (1995). Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question at this time. ORDER Entitlement to service connection for a hemorrhoid disability is denied. Entitlement to an original 10 percent evaluation for a scar disability is granted. REMAND The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). We note that the examiner of the veteran's May 1998 examinations noted that the veteran was to have a repeat CBC when he was evaluated by his private physician or endocrinologist for his hypothyroidism disorder. However, our review of the claims file does not reflect that those reports are associated with the record. Because we determine that review of those records could be of significant probative before further appellate consideration of the veteran's claim, we conclude that a Remand for those records is necessary. The United States Court of Appeals for Veterans Claims has held that VA has a duty to assist veterans in the development of facts pertinent to their claims, under 38 U.S.C.A. § 5107(a) (West 1991) and 38 C.F.R. § 3.103(a) (1998), which requires that VA accomplish additional development of the evidence if the record currently before it is inadequate. Littke v. Derwinski, 1 Vet.App. 90 (1990). Accordingly, this case is REMANDED for the following: 1. The RO should request that the veteran provide the names and addresses of all private physicians he has seen for his thyroid disorder, and then attempt to obtain those records, after obtaining the duly authorized releases. If these attempts are unsuccessful, the RO shall document the unsuccessful attempts and associate the documentation with the veteran's claims folder. 2. After association of these records, if any, with the veteran's claims file, the RO shall next schedule a records review and endocrinological examination, with and provide the examiner with the veteran's claims folder and a copy of this Remand. 3. The examiner shall review the veteran's records, in conjunction with the examination, and determine whether the veteran manifests: (1) cold or heat intolerance, (2) muscle weakness, (3) cardiovascular involvement, bradycardia, or tachycardia, (4) mental disturbance, sleepiness, or emotional instability, or (5) weight loss or gain. The specialist shall also conduct all studies necessary to evaluate the severity of the veteran's thyroid disorder. 4. Following completion of the above, the RO should review the veteran's examination report and verify that all of the development action has been conducted and completed in full. The RO should then review the veteran's claim, and determine whether it can now be granted. If the decision remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case and with a reasonable period of time within which to respond thereto. The case should then be returned to the Board for further review, as appropriate. No inferences should be drawn regarding either the RO's handling of the claim to date or any final disposition of the claim by the Board. The Board expresses its gratitude in advance to the RO for its assistance in completing the above development, and we trust that it will attend to this development in an expeditious manner. M. W. GREENSTREET Member, Board of Veterans' Appeals