BVA9500254 DOCKET NO. 93-09 662 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a compensable evaluation for an appendectomy scar. 2. Entitlement to service connection for Meniere's disease. 3. Entitlement to service connection for residuals of pneumonia. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Kelly, Associate Counsel INTRODUCTION The veteran had active military service from December 1941 to March 1946. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the currently assigned noncompensable disability evaluation for his service-connected appendectomy scar is insufficient and warrants an increased disability evaluation. He further maintains that service connection is warranted for Meniere's disease, as he contends that it had its origin in service. The veteran further contends that his inservice episode of pneumonia has made him susceptible to colds and that any current respiratory problems are the result of his inservice pneumonia. DECISION OF THE BOARD The Board of Veterans' Appeals (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 preponderance of the evidence is against the claim for a compensable evaluation for residuals of an appendectomy. It is further the decision of the Board that the preponderance of the evidence is against the claim of entitlement to service connection for Meniere's disease. It is also the decision of the Board that the veteran has not submitted evidence of a well-grounded claim for service connection for residuals of pneumonia. FINDINGS OF FACT 1. All relevant evidence for an equitable disposition has been obtained by the regional office (RO). 2. The veteran's appendectomy scar is neither poorly nourished with repeated ulceration nor tender or painful on objective demonstration, nor has limitation of the function of the part affected due the appendectomy scar been demonstrated. 3. Meniere's disease was not shown in service; Meniere's disease first shown many years after service and is unrelated to service. 4. The veteran's pneumonia in service was acute and transitory; no medical evidence demonstrating any residual of pneumonia has been submitted. CONCLUSIONS OF LAW 1. The criteria for a compensable evaluation for postoperative residuals of an appendectomy scar have not been met. 38 U.S.C.A §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.31, 4.118, Codes 7803, 7804, 7805 (1993). 2. Meniere's disease was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303(d) (1993). 3. The veteran's claim for service connection for residuals of pneumonia is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Appendectomy Scar The veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has submitted a claim which is plausible. We are also satisfied that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a) (West 1991). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). Separate diagnostic codes identify the various disabilities. A 10 percent disability evaluation will be assigned for a superficial scar which is tender and painful on objective demonstration or that is poorly nourished with repeated ulceration. Scars are also rated on limitation of the function of the part affected. 38 C.F.R. § 4.118, Codes 7803, 7804, 7805 (1993). 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 (1993). A review of the claims folder demonstrates that an appendectomy was performed on the veteran on September 18, 1942. The veteran was released to duty on October 9, 1942. He did not require any follow-up treatment. No sequelae from the appendectomy were noted at the time of an April 1943 examination. There were also no complaints of residual pain noted at the time of the veteran's February 1946 separation examination. The veteran has not submitted any objective medical evidence showing any pertinent treatment following his release from service. More importantly, at his November 1992 personal hearing, the veteran, when asked whether his scar was painful to the touch, indicated that he had had no problems with the scar. Transcript p. 3 (T. 3). Furthermore, the veteran testified that the scar was completely healed. (T. 3). As previously noted, for a compensable evaluation, a scar must be poorly nourished with repeated ulceration, tender and painful on objective demonstration or there must be a limitation of function of the part affected. As the veteran has submitted no evidence of any pertinent treatment and has testified that the scar has completely healed and that he has no problems with the scar, the criteria for a compensable evaluation have not been met or approximated. 38 U.S.C.A §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.31, 4.118, Codes 7803, 7804, 7805 (1993). Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the evidence discussed above does not suggest that the veteran's appendectomy scar presents such an unusual or exceptional disability picture as to render impractical the application of the regular schedular standards so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) (1993). For example, the disability has not recently required frequent periods of hospitalization. B. Meniere's Disease The veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has submitted a claim which is plausible. We are also satisfied that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a) (West 1991). Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1993). Meniere's disease is an inner ear disorder characterized by recurrent prostrating vertigo, sensory hearing loss, and tinnitus. The Merck Manual 2185 (Robert Berkow, M.D., et al. eds., 15th ed. 1987). A review of the veteran's claims folder demonstrates that he had numerous complaints of, and treatment for, sinusitis while in service. At his personal hearing, the veteran indicated that his ear condition was interrelated with nose, throat, and eye problems. (T. 4). He further reported having had pain in his right eye and going blind while piloting a plane in service. (T. 4). The veteran further testified that he had received treatment for ear difficulties at a number of air bases while in service. (T. 6). A review of the veteran's claims file demonstrates that at an April 1943 medical examination, the veteran denied having had ear trouble. The veteran's hearing was reported to be 20/20 on whispered voice testing. Although the foregoing test is crude when compared with audiometry examination, it is a time-honored method for rapid and approximate testing of hearing acuity. The test result is reported on the following basis: The first figure represents where the tested individual heard the stimulus, while the second figure represents where an average "otologically normal" person understands that stimulus. H. Davis, M.D., and S. R. Silverman, Ph.D., Hearing and Deafness, 181-182 (3d. ed. 1970). Thus, the hearing results at the time of the examination were normal. The veteran's visual acuity was also reported to be 20/20 at that time. A June 1943 medical examination reported the veteran's vision and hearing to be 20/20, bilaterally. At the time of his February 1946 separation examination, the veteran's vision was noted to be 20/20, bilaterally, and his hearing was reported to be 15/15, bilaterally. While we note that the veteran was treated for a sinus condition on a number of occasions in service, there is no indication of hearing loss, tinnitus, or dizziness while in service. At the time of his November 1992 personal hearing, the veteran testified that following service, he was hospitalized in the 1960's for dizziness. He further indicated that the doctors treated this problem as a heart condition at that time. (T. 10). He also reported that the first actual diagnosis of Meniere's disease did not occur until 1980. (T .8). The veteran also testified as to having been exposed to loud noises subsequent to service as a result of his employment. A diagnosis of Meniere's disease was rendered at the time of the veteran's November 1991 hospitalization for a thallium stress test and a cardiac catheterization. Meniere's disease was also diagnosed at the time of a December 1991 Department of Veterans Affairs (VA) ear, nose, and throat examination. An audiological evaluation performed at that time noted that the veteran had a profound sensorineural hearing loss in his right ear and a mild to profound hearing loss in his left ear. While the veteran presently has Meniere's disease, there was no diagnosis of Meniere's disease rendered during service, nor has any evidence been submitted to indicate that any disorder that the veteran had during service was misdiagnosed. Moreover, hearing loss, vertigo, or tinnitus were not reported during service. The first reported treatment for Meniere's disease, as related by the veteran, did not occur until the 1960's, more than fourteen years following service separation. The first actual diagnosis of Meniere's disease, as reported by the veteran, did not occur until 1980, more than 23 years after service separation. While the veteran has indicated his belief that his sinus problems during service were related to Meniere's disease, he is not medically qualified to render an opinion as to the etiology of his present disorder. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Moreover, there has been no medical evidence submitted relating the veteran's current Meniere's disease to any episodes in service. Although the Board must give probative weight to the evidence presented on behalf of the veteran, we believe the negative findings in service medical records as well as an absence of objective evidence until at least more than 13 years after service demonstrates a preponderance of the evidence against the claim of entitlement to service connection for Meniere's disease. C. Residuals of Pneumonia Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 1991). For the 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 a showing of continuity after discharge is required to support the claim. With chronic disease shown as such in service (or within an applicable presumptive period) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service-connected unless clearly attributable to intercurrent causes. 38 C.F.R § 3.303(b) (1993). The threshold question to be addressed is whether the veteran has presented a well-grounded claim for service connection. If he has not presented a well-grounded claim, his appeal must fail and there is no duty to assist him further in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1992). Case law provides that, although a claim need not be conclusive to be well-grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992); Dixon v. Derwinski, 3 Vet.App. 261, 262 (1992). A review of the claims folder demonstrates that the veteran was hospitalized for right lower lobe pneumonia from October 26, 1942, to November 12, 1942. X-rays taken of the veteran's chest prior to his release to duty demonstrated that his lungs were clear. The veteran did not have a recurrence of pneumonia during his remaining service. His respiratory system was reported as normal at the time of his separation from service. At his November 1992 personal hearing, the veteran indicated that he had not had a recurrence of pneumonia subsequent to November 1942. (T. 7). The veteran further testified that the first objective treatment for any type of respiratory disorder did not occur until 1980, more than 23 years after his separation from service. (T. 8). While the veteran has related his belief that his current coronary artery disease, Meniere's disease, and difficulty with breathing, are residuals from his inservice pneumonia, he is not medically qualified to render a medical opinion. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Moreover, there has been no medical evidence submitted relating the veteran's current coronary artery disease, Meniere's disease, or difficulty with breathing or any other disorder to the pneumonia in service. In accordance with Grottveit v. Brown, 5 Vet.App. 91 (1993), lay assertions of medical causation cannot constitute evidence to render a claim well-grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. If a claim is not well-grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). As such, the matter must be dismissed. ORDER A compensable evaluation for an appendectomy scar is denied. Service connection for Meniere's disease is denied. The veteran's claim for entitlement to service connection for residuals of pneumonia is dismissed. WILLIAM J. REDDY 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.