BVA9505443 DOCKET NO. 93-12 532 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for impotence. 2. Entitlement to service connection for priapism. 3. Entitlement to an increased (compensable) evaluation for residuals of fracture of left fifth finger. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran served on active duty from May 1981 to August 1991. This matter came before the Board of Veterans' Appeals (Board) on appeal from an April 1992 rating decision from the St. Petersburg, Florida, Regional Office (RO). Testimony was presented before a hearing officer. The veteran's representative may have raised the issue of entitlement to service connection for a left hand disorder, as distinguished from the service-connected left thumb and left fifth finger (service-connected) disabilities. We note that there is no formal claim for a left hand disorder, and no indication of a left hand disorder other than the already service-connected disabilities. Based upon the lack of a formal claim and the lack of evidence of current left hand disability, the Board will not delay the issuing of a decision. The regional office is instructed to follow the regulations regarding informal claims and seek perfection of a claim from the veteran. He should also be instructed to submit evidence of a well grounded claim. In regard to the implicit allegation that the entire hand must be considered, such is addressed in the body of the decision. CONTENTIONS OF APPELLANT ON APPEAL It is contended that impotence and priapism are of service origin and that the VA examination is not adequate. It is maintained that the veteran should have undergone a neurologic examination. It is contended that the left fifth finger disorder is more severe than currently evaluated. 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 claim for service connection for priapism is not well grounded; and that the preponderance of the evidence is against a claim for an increased evaluation for residuals of a left fifth finger fracture. The preponderance of the evidence is against the claim for service connection for impotence. FINDINGS OF FACT 1. Satisfactory evidence of priapism has not been presented. 2. All relevant evidence necessary for an equitable disposition of the left fifth finger appeal has been obtained. 3. The veteran is not impotent. 4. The fracture of the left fifth finger is manifested by a healed fracture with no functional("disabling") impairment. 5. The case does not present an exception or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the regular schedular standards. CONCLUSIONS OF LAW 1. Impotence was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). 2. The claim for service connection for priapism is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 3. Fracture of the left fifth finger is no more than 0 percent disabling. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.7, Part 4, Code 5299-5220-5223 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Priapism The threshold question to be answered is whether the appellant has presented evidence of a well-grounded claim for service connection for priapism. If he has not presented a well- grounded claim, the appeal must fail and there is no duty to assist the veteran. 38 U.S.C.A. § 5107 (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). As we explain below, we find that the claim is not well grounded. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Regulations 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) (1994). The claimant has the burden of submitting evidence sufficient to justify a belief that the claim is well grounded. The VA benefits system requires more than just an allegation; a claimant must submit supporting evidence. Furthermore, the evidence must justify a belief by a fair and impartial individual that the claim is plausible. The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including a veteran's solitary testimony, may constitute sufficient evidence to establish a well-grounded claim. However, where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. A claimant would not meet this burden merely by presenting lay testimony because lay persons are not competent to offer medical opinions. Grottveit v. Brown, 5 Vet.App. 91 (1993). The evidence reflects that priapism was not visually identified at time of release from service. In addition, priapism was not identified during VA examination conducted in 1991. The contention that the examination is inadequate is not sustainable when it is realized that priapism may be recognized by simple visual inspection. Furthermore, the veteran has indicated that he has not had an incident of priapism since the 1980's. Although the veteran is not competent to diagnose a condition, he is competent to report whether the visible manifestation of priapism was noticeable to him. There is a fundamental basis for denying the claim for service connection for priapism. The appellant has not produced any evidence that would tend to show a presently existing disability. He apparently is of the belief that he is entitled to some sort of benefit simply because he had a disease or injury while on active service. That, of course, is mistaken. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in disability. In the absence of proof of a present disability there can be no valid claim. See Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). II. Impotence The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). He has presented a claim that is plausible. We are satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107. The Board concludes that the claim for service connection for impotence is well grounded based upon a diagnosis of impotence entered by a VA examiner in 1991. In regard to the claim for service connection for impotence, the contention that the examination is inadequate is not determinative. The examiner entered a diagnosis of impotence, and that statement, standing alone, renders the claim for service connection well grounded. However, the Board has a duty to review all the evidence of record and determine whether the evidence is in equipoise or whether the preponderance of the evidence is against the claim. The veteran has reported that he achieves erections; that he is able to achieve penetration; and that he is able to ejaculate. It is within the realm of the veteran's competence to report these facts. In regard to competence of a person to enter evidence, the United Sates Court of Veterans appeals has decided that: As a general matter, in order for any testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration. First a witness must have personal knowledge in order to be competent to testify to a matter. Personal knowledge is that which comes to the witness through the use of his senses - that which is heard, felt, seen, smelled, or tasted. (witness may testify upon concrete facts within their own observation and recollection- that is, facts perceived within their own senses, as distinguished from their opinions or conclusions drawn from such facts). Competency, however, must be distinguished from weight and credibility. The former is the legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. (Although interest may affect the credibility of testimony, it does not affect competency to testify). Layno v. Brown, 6 Vet.App 465, 469 (1994). In regard to whether the veteran is able to achieve an erection, penetration, and ejaculation, such facts may be perceived by his senses. Layno The veteran's comments are competent, statements against interest, and disprove the existence of impotence. In regard to the diagnosis of impotence by the VA examiner, such finding was unsupported by clinical findings and rebutted by the competent statements entered by the veteran. Although the veteran and the doctor are each competent to present the evidence in this case, the Board concludes that the veteran's statements are more probative of actual facts than the medical opinion. The preponderance of the evidence reflects that the veteran does not have impotence. Accordingly, there is no doubt to be resolved and service connection is not warranted. In reaching the determination, the Board has not substituted its judgment for that of a medical professional. Rather, the Board has evaluated all the competent evidence and has concluded that the veteran's statements of his symptoms are more probative than the medial opinion unsupported by clinical findings. III. Left Fifth Finger The veteran's claim for an increased rating is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). We find that he has presented a claim that is plausible. We are satisfied that all relevant facts have been properly developed. There is no indication of outstanding additional evidence. No further assistance to the veteran is required to comply with the duty to assist the veteran mandated by 38 U.S.C.A. § 5107. Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Although the VA must consider the entire record, the most pertinent evidence is those documents created in proximity to the recent claim. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 4.1 (1994). In April 1992, the regional office granted service connection for residuals of a left fifth finger fracture and assigned a noncompensable evaluation. The grants were based upon the service medical records reflecting an inservice trauma and the results of an examination conducted for compensation purposes in October 1991. The veteran was informed of the determinations and this appeal ensued. Compensation for service-connected disability is based on ten grades of disability established by a schedule of ratings, which the Secretary is directed to adopt and apply. Swan v. Derwinski, 1 Vet.App. 20, 22 (1990). In addition, the United Sates Court of Veterans appeals addressed the issue of limitation of motion of the fingers. Hill v. Principi, 3 Vet.App. 540, 541 (1992). As to the claim for increased disability for the service- connected finger injury, the evidence is unrebutted that there is some degree of impairment, i.e., a loss of some flexibility to the appellant's middle finger on his right hand. The BVA found that the restriction on the range of motion was insufficient to permit a higher rating. The relevant rating code is 38 C.F.R. § 4.71a (1991), Diagnostic Code (DC) 5226. This code can be understood only by reading the notes from DC 5216 et seq. Neither the format of the code pertaining to finger injuries nor its interpretative notes are a model of clarity. The BVA interpretation is that "to warrant a compensable evaluation . . . the medical evidence of record must show that ankylosis of the . . . middle finger prevents flexion of the finger to within 2 inches of the . . . palm" (emphasis supplied). However, the note accompanying the code actually reads: "With only one joint of a digit ankylosed or limited in its motion, the determination will be made on the basis of whether motion is possible to within 2 inches of the . . . palm; when so possible the rating will be for favorable ankylosis, otherwise unfavorable" (emphasis supplied). In turn, DC 5226 provides that a 10% rating is appropriate whether the ankylosis is favorable or unfavorable. Granting then that the stiffness was moderate (appellant can apparently touch his palm with the middle finger, albeit with difficulty) and that appellant could get to within two inches of the palm, it would seem he had a "favorable" condition. Therefore, a 10% rating would seem to follow ineluctably, unless there is a third category neither favorable nor unfavorable. The only such third category this Court can find is note (a) appended to DC 5223. However, by its own terms, that note applies only to DCs 5220 through 5223. Admittedly, this seems to place an individual with a middle finger ankylosis in a better position compared to one with, for example, both a middle and a ring finger ankylosis. Hill v. Principi, 3 Vet.App. 540, 541 (1992). The facts in this case are similar to the facts in Hill. Although the 1991 left fifth finger examination result was described as essentially negative, with no abnormality noted on X-ray, there was minimal restriction of the midphalangeal joint. We also note that the physical findings are similar to the symptoms reported by the veteran during his personal hearing. However, unlike Hill, the veteran has multiple finger involvement, with service connection granted for the left thumb and assigned a 10 percent evaluation. Therefore, all the provisions of the appropriate diagnostic codes must be considered. The schedule initially directs that with only one joint of a digit ankylosed or limited in its motion, the rating will be for favorable or unfavorable ankylosis, the ratings for codes 5220 through 5223 apply to favorable ankylosis or limited motion permitting flexion of the tips to within 2 inches (5.1 cms.) of the transverse fold of the palm. However, limitation of motion of less than 1 inch (2.5 cms.) in either direction is not considered disabling. Neither the objective evidence of record nor the veteran's testimony establish that the veteran has actual or functional limitation of motion that in more than 1 inch. See 38 C.F.R. § 4.40 (1994). Accordingly, regulations establish that the veteran's fifth finger condition (with other finger involvement) is not disabling. When all the evidence is assembled, the Secretary, is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990). The Board concludes that there is no conflict in the evidence. The veteran has minimal limitation of motion of the finger, no evidence of abnormality on X-ray examination, no ankylosis, and no objective confirmation of pain on motion or "disabling" limitation of motion. See 38 C.F.R. § 4.59 (1994). In regard to the testimony that he has pain if he bangs the finger, the testimony is accepted as true but does not establish a basis for awarding a compensable evaluation. There is no doubt to be resolved and an increased evaluation is not warranted. The Board notes that the regional office evaluated the veteran's disability as an analogous condition, with analogy to ankylosis a single finger (other than thumb index or middle). 38 C.F.R. Part 4, Code 5299-5227. The Board has considered this analogy, and based upon the decision of the Court find the analogy not persuasive because there is multiple finger involvement of the same hand. The decision to evaluate and consider multiple finger involvement is in accord with the regulation, the facts, the implied contention of the representative and the decision of the Court. We also conclude that since there is no dispute that the veteran has multiple finger involvement of the same hand and that the representative has apparently argued the point, the veteran is not prejudiced by considering the diagnostic codes and regulations that best fit the analogy. ORDER The appeal for service connection for impotence and priapism is dismissed. An increased evaluation for a left fifth finger fracture is denied. H. N. SCHWARTZ Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) 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.