BVA9500904 DOCKET NO. 91-50 941 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a psychiatric disorder exclusive of post-traumatic stress disorder. 2. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for a fungus disorder. 3. Entitlement to service connection for post-traumatic stress disorder. 4. Entitlement to service connection for a prostate disorder. 5. Entitlement to an increased rating for residuals of a fracture of the right third finger, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from January 1943 to January 1946, from January 1947 to February 1950, and from August 1950 to November 1951. By decision in January 1980, the Board of Veterans' Appeals (Board) denied service connection for a psychiatric disorder and for a fungus infection of the skin. Subsequent thereto, the veteran has submitted additional evidence in an attempt to reopen his claim for entitlement to service connection for a psychiatric disorder, exclusive of post-traumatic stress disorder, and a fungus infection of the skin. This matter came before the Board on appeal from rating decisions of March and June 1991 by the Department of Veterans Affairs (VA) Regional Office (RO)in Jackson, Mississippi. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran developed a psychiatric disorder and fungus of the skin during active service. It is asserted that he has continued to receive treatment for these disabilities from service until the present time. It is also contended that the veteran has post-traumatic stress disorder as a result of stress he experienced when a ship on which he was serving was torpedoed, causing substantial loss of life. It is asserted that the veteran has a prostate disorder which is related to active service. It is also asserted that the veteran's residuals of a fracture of the right third finger are more disabling 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 new and material evidence has not been submitted to reopen claims for entitlement to service connection for a psychiatric disorder, exclusive of post-traumatic stress disorder, and for a fungus infection of the skin; that the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for service connection for a prostate disorder is well grounded; and that a preponderance of the evidence is against service connection for post-traumatic stress disorder and an increased rating for residuals of a fracture of the right third finger. FINDINGS OF FACT 1. With respect to the issues of service connection for post- traumatic stress disorder and an increased rating for residuals of a fracture of the right third finger, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Service connection for a psychiatric disability, exclusive of post-traumatic stress disorder, and fungus infection of the skin was denied in a January 1980 Board decision. 3. Evidence added to the record since the January 1980 Board decision does not bear directly on the question of whether the veteran had a psychiatric disability, exclusive of post-traumatic stress disorder, or fungus infection of the skin during active service or as a result thereof. 4. The veteran does not have post-traumatic stress disorder as a result of his active service; the only diagnosis of post-traumatic stress disorder of record is based on history given by the veteran which is not credible. 5. A prostate disorder was not manifested during active service or for more than 25 years following final service discharge and is not shown to be related to service. 6. Residuals of a fracture of the right third finger are manifested by traumatic arthritis of the distal interphalangeal joint, degenerative enlargement of that joint, tenderness to palpation over that joint, and a decrease of 15 degrees of active extension in that joint. CONCLUSIONS OF LAW 1. The January 1980 Board decision denying service connection for a psychiatric disability, exclusive of post-traumatic stress disorder, and a fungus infection of the skin is final; new and material evidence has not been presented to reopen those claims. 38 U.S.C.A. §§ 5107, 5108, 7104 (West 1991); 38 C.F.R. §§ 3.156, 20.1105 (1993). 2. Post-traumatic stress disorder was not incurred in or aggravated by the veteran's active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991). 3. With respect to service connection for a prostate disorder, the veteran has not submitted evidence of a well-grounded claim. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991). 4. An evaluation greater than 10 percent for residuals of a fracture of the right third finger is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.7, Part 4, Codes 5010, 5226, 5154 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material Evidence Service medical records are silent for complaint, finding, or treatment of any psychiatric disability. February and August 1944 service medical records reflect that the veteran had otitis externa. An October 1948 service medical record states that the veteran had a fungus infection of the skin of his feet. Reports of service examinations conducted in January 1946, February 1950, August 1950, and November 1951, and a Naval Reserve Reenlistment examination in December 1956 reflect no complaint, finding, or treatment for any fungus infection or psychiatric disability. A January 1976 certificate from Burks Dermatology and Allergy Clinic reflects that the veteran received treatment in October and November 1975 and states the diagnosis as tinea versicolor, tinea cruris and inflamed megalopia. It states that all conditions had cleared. A February 1976 VA medical record states that the veteran appeared very nervous and was talking about the dead during the war. An August 1978 certificate from the veteran's brother, a private physician, states that he had treated the veteran following his discharge from World War II until approximately 10 years prior to 1978. The diagnoses included anxiety reaction and fungus infection. An October 1978 letter from Nan C. Brantley, M.D., states that the veteran had been under her care since June 1978. It reports a 1978 hospitalization during which the veteran's diagnoses included psychophysiological respiratory disorder and anxiety neurosis. At the time of the admission for the June 1978 hospitalization for severe anxiety and depression of 4 months' duration, it was felt that the veteran's anxiety and depression were secondary to inactivity and a fear of death following the fracture of his hip four months previous. A January 1979 letter from the veteran's brother, the private physician, indicates that he treated the veteran for a nervous condition beginning in 1959. A March 1979 statement from a private physician indicates that he had treated the veteran several times for recurrent fungal otitis. The above evidence was of record at the time of the January 1980 Board decision which denied service connection for a psychiatric disorder, exclusive of post-traumatic stress disorder, and a fungus infection of the skin. Subsequent to that Board decision, substantial clinical evidence has been added to the record. This evidence includes VA medical records which reflect that the veteran was treated for tinea versicolor in the mid-1970's and intermittently thereafter. It also indicates that he was seen for otitis in the late 1970's. However, none of these records associate the veteran's skin condition or otitis from the mid-1970's with his active service which terminated in 1951. The report of a February 1989 VA psychiatric examination states the diagnoses as bipolar disorder, mixed, and post-traumatic stress disorder. Post-traumatic stress disorder is being considered as a separate issue in this decision. VA outpatient treatment records reflect that the veteran was being seen for anxiety in 1990 and 1991. None of the clinical evidence submitted subsequent to the January 1980 Board decision associates any fungus infection or psychiatric disorder, exclusive of post-traumatic stress disorder, with the veteran's active service. The veteran's assertion that his fungus is related to exposure to unclean water is not supported by the clinical evidence of record, and the veteran does not possess the medical knowledge or expertise to offer an opinion which is probative with respect to causation for his fungus or a psychiatric disability. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). The evidence submitted subsequent to the January 1980 Board decision is not material because it is not probative in demonstrating any relationship between the veteran's currently manifested psychiatric disability, exclusive of post-traumatic stress disorder, or his skin condition and service. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Therefore, the January 1980 Board decision remains final. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 3.156, 20.1105. II. Post-Traumatic Stress Disorder The veteran's claim with respect to this issue is "well grounded" within the meaning of 38 U.S.C.A. § 5107. We are satisfied that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. As was noted previously, the veteran's service medical records disclose no complaint, finding, or treatment for any psychiatric disability. While the veteran's brother, who is a private physician, initially indicated that he had treated the veteran for a psychiatric disability following World War II until approximately 1968, he subsequently clarified that he initially began treating the veteran for a psychiatric disability in 1959. Other private evidence of record reflects that the veteran was initially treated for a psychiatric disability in approximately 1978. Post-traumatic stress disorder was first diagnosed on a January 1989 VA psychiatric examination. At the time of that examination, the veteran reported that his first tour of duty took place during World War II when he was on a repair ship in the South Pacific which was frequently bombed by Japanese bombers. They were also given contaminated meat on that ship, with an epidemic of food poisoning resulting in much illness and death. He was not able to function as effectively as he had before and was in the sickbay a number of times, where he was placed under heavy sedation. At the beginning of the Korean war, he was ordered to active duty and placed on duty aboard a destroyer. While proceeding to Korea, his ship was torpedoed. He managed to get to the deck from his quarters, where he saw that many of his friends had been blown off the ship and were floating dead in the water. Although the ship was completely disabled, it did not sink; and he was one of the crew who remained on the ship while it was being towed to Bermuda. From that time on, he found himself becoming increasingly tense, agitated, very restless, and unable to sit still. His sleep became poor and broken, and he was extremely distractible and unable to keep his mind on any one particular subject. When his ship reached Bermuda, he was hospitalized and given medication, which made him tranquil and slowed him down. He was returned to duty and then transferred stateside. He reported that he was finally discharged in April 1957. On the basis of the above information, the examiner's diagnoses included post-traumatic stress disorder. In a statement received from the veteran in February 1993, he provided further information concerning the tragedy which occurred when the U.S.S. Charles H. Roan, the ship which he was assigned to, was hit midship with a torpedo. There was a crew sleeping on deck in the area where the ship was hit, and the entire crew was killed in that area. They were all floating in the water, and there was so much blood that there were sharks all around the ship. The veteran was the last person to come up from below deck. The only thing that kept the ship afloat was the pumps pumping out the water. Tugboats came to the rescue and tied onto the ship. The tugboats towed the ship into Bermuda for temporary repairs from a point approximately 200 miles from Korea where the incident occurred when they were with the fleet on the way to Korea. Water was coming in so fast that they were closing the hatches as the veteran was coming up to the deck. He grabbed the hatch and hollered, and that was when he got his hand hurt and his finger broken. In a February 1991 statement, received in March 1991, the veteran states that he wants an increase for his service-connected finger which was hurt when the ship he was on was hit by a torpedo and sank. During a personal hearing held in November 1988, the veteran indicated that it was when his ship was hit by a torpedo that his finger was broken. He confirmed that the ship was the Roan and that they were towed from the Pacific Ocean to Bermuda. He also clarified that the ship was hit during the Korean war and prior to 1951. Initially, the Board notes that the veteran was transferred to the U.S.S. Charles H. Roan at the Navy Shipyard in Boston, Massachusetts, for duty in September 1950. He remained at that assignment until he was transferred to the U.S.S. Block Island in March 1951. His DD Form 214 reflects that his most significant duty assignment during the period on which he served on both the Roan and Block Island was the duty on board the Block Island. Further, service medical records reflect that the veteran fractured his right middle finger (the finger for which service connection has been established, and the finger to which the veteran was referring in his different statements as to being broken when a hatch was slammed down on him as he was trying to make his way to the upper deck when the Roan was sinking) in April 1947, when he was serving on the U.S.S. Wright CVL-49, and not the Roan. A July 1993 report of contact with the ship's history department at the United States Navy in Washington, D. C., reflects that the U.S.S. Charles H. Roan was being repaired from 1950 to 1951 and in overhaul until 1953. Thereafter, it went on a cruise around the world, but there is nothing in the record about any incident. The Board finds that the service medical records with respect to when the veteran's finger was fractured are more credible because they are contemporaneous with the event when it occurred. Because the veteran has attempted to associate his broken finger with a tragic experience on board the Roan when service medical records contradict that report and because of the veteran's own contradiction in his story, i.e., the ship sank as opposed to the ship was towed, and because of the inherently incredible nature of the story of a ship being towed from 200 miles off the coast of Korea, by tugboats, to Bermuda for repairs, the record reflects that the veteran's account of the Roan being torpedoed while he was serving on it is not credible. The more credible account is that provided by the ship's history department at the United States Navy that the Roan was in for repairs in 1950 and 1951. This would be consistent with the veteran's service records which reflect that he was assigned to the Roan at the Navy Shipyard in Boston, Massachusetts, for duty and that it was not his most significant assignment during that period of service. On the basis of this analysis, the veteran's entire account, with respect to him being present when the Roan was torpedoed, is inaccurate; and, in fact, he was not present during such an occurrence. Since this was the factual history presented to the psychiatric examiner at the time of the VA psychiatric examination in January 1989, his opinion with respect to a diagnosis of post-traumatic stress disorder was based upon an inaccurate premise and has no probative value. Since the only diagnosis of post-traumatic stress disorder of record was based upon an inaccurate premise and has no probative value, the remainder; and service connection, therefore, is not warranted. 38 U.S.C.A. §§ 1110, 1131, 5107. III. Prostate Disorder The threshold question to be answered with respect to this issue is whether the veteran has presented evidence of a well-grounded claim; that is, a claim which is plausible. 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 that claim because such additional development would be futile. 38 U.S.C.A. § 5107. As will be explained below, the Board finds that his claim for service connection for a prostate disorder is not well grounded. Service medical records are silent for any finding, complaint, or treatment for a prostate disorder. A June 1991 VA outpatient treatment record includes the assessment of benign prostatic hypertrophy by history. A September 1991 VA outpatient treatment record includes the assessment of early benign prostatic hypertrophy. A March 1992 VA outpatient treatment record includes the impression of benign prostatic hypertrophy secondary to testosterone shots. The veteran's last discharge from active service was in 1951, and the first clinical evidence of record with respect to a prostate disorder is dated in 1991. As the veteran has failed to submit evidence showing a medical relationship between his currently diagnosed benign prostatic hypertrophy and his active service, his claim for service connection for a prostate disorder is not well grounded. Grivois v. Brown, 6 Vet.App. 136 (1994). Since the claim is not well grounded, there is no further duty to assist him in the development of that claim. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The Board does not have jurisdiction to adjudicate it, and it must, accordingly, be dismissed. Grottveit v. Brown, 5 Vet.App. 91 (1993); Boeck v. Brown, 6 Vet.App. 14 (1993). IV. Increased Rating for Right Third Finger Service medical records reflect that X-rays of the veteran's right third finger in April 1947 revealed a fracture of the distal phalanx extending into the joint. There was satisfactory alignment. X-rays in June 1947 revealed that the fracture was healing and the position satisfactory. A March 1979 report from a private physician states that the veteran complained of increased stiffness and swelling of the right third finger. Examination revealed hypertrophy of the distal interphalangeal joint. Range of motion was from 20 degrees in flexion to 35 flexion. Passive range of motion was from full extension to a few degrees past 35 in flexion with discomfort. The ligaments were stable. X-rays revealed narrowing of the joint space at the distal interphalangeal joint with sclerosis and malformed bone. The impression was traumatic arthritis of the distal interphalangeal joint of the right long finger. A May 1979 rating decision granted service connection for residuals of a fracture of the right third finger and assigned a 10 percent evaluation. That evaluation has remained in effect until the present time. The report of a May 1991 VA examination states that the veteran reported he continued to have pain and swelling in the finger over the years. He was right hand dominant. Examination revealed that the veteran could make a satisfactory fist with his hand. His right distal interphalangeal joint lacked approximately 15 degrees of active extension, but had full passive extension. There was significant degenerative enlargement of the joint. Range of motion of the medial interphalangeal joint of the right third finger was from 0 to 95 degrees, and range of motion of the right third proximal interphalangeal joint was from 0 to 95 degrees. There was significant tenderness to palpation over the distal interphalangeal joint of the right long finger. Grip strength was equal, bilaterally. X-rays revealed osteoarthritic changes at the 2nd and 3rd distal interphalangeal joints. The impression was residuals of a fracture of the right long finger, including traumatic arthritis of the distal interphalangeal joint. In reaching its decision, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1993). The nature of the original injury has been reviewed, and the functional impairment which can be attributed to pain or weakness has been taken into account. As noted above, the veteran has reported pain and swelling over the years. 38 C.F.R. § 4.40 (1993). The maximum rating provided by the rating schedule for impairment of a middle finger, assigned when there is unfavorable ankylosis of the finger, is 10 percent. Code 5226. The only schedular basis for a higher rating for disability of the middle finger is if there was amputation of the finger with metacarpal resection. The veteran's finger has not been amputated, and, conse- quently, an increased rating on a schedular basis is not warranted. Further, the Board finds that, in this case, the disability picture is not so exceptional or unusual so as to warrant an evaluation on an extraschedular basis. It has not been shown that residuals of a fracture of the right third finger have caused marked interference with employment or necessitated frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1) (1993). ORDER Service connection for post-traumatic stress disorder is denied. The appeal to reopen claims for service connection for a psychiatric disorder other than post-traumatic stress disorder and a fungus infection of the skin is denied. The claim for service connection for a prostate disorder is dismissed. An increased rating for residuals of a fracture of the right third finger is denied. GEORGE R. SENYK 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.