Citation Nr: 0003935 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 98-06 938 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a back injury with residual right hand numbness. 2. Entitlement to an initial evaluation in excess of 10 percent for cholecystectomy/appendectomy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K.L. Salas, Associate Counsel INTRODUCTION The veteran had active military service from August 1970 to September 1978. This appeal arose from a July 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The RO granted entitlement to service connection for "cholecystectomy/appendectomy" with assignment of a noncompensable evaluation effective August 2, 1996. The RO also denied claims for entitlement to service connection for a "back injury with residual right hand numbness" and for a left ankle sprain. After the veteran submitted a notice of disagreement (NOD) with the July 1997 rating decision the RO, in September 1997, granted entitlement to service connection for residuals of an ankle sprain, with assignment of a noncompensable evaluation, effective August 2, 1996. An NOD has not been received with respect to the above grant. That issue is therefore considered to be resolved. In April 1999, the RO granted a 10 percent evaluation for cholecystectomy/ appendectomy effective the date of the veteran's claim. The appellant is generally presumed to be seeking the maximum benefit available by law, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. AB v. Brown, 6 Vet. App. 35 (1993). The maximum benefit available has not been granted, therefore the matter is not resolved. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. FINDINGS OF FACT 1. The claim of entitlement to service connection for a back injury is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. A disorder manifested by right hand numbness was shown in service and was medically attributed to the service-connected cholecystectomy/appendectomy operation. 3. The service-connected cholecystectomy/appendectomy is productive of no more than mild impairment. 4. The service-connected cholecystectomy/appendectomy is not productive of demonstrable considerable impairment of health. 5. As of February 10, 1999 the veteran's cholecystectomy/appendectomy scar has been shown to be tender and painful on objective demonstration. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a back injury is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. A disorder manifested by right hand numbness was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.102, 4.3, 3.303, 3.310 (1999). 3. The criteria for an initial evaluation in excess of 10 percent for cholecystectomy/appendectomy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.114, Diagnostic Codes 7318, 7346 (1999). 4. The criteria for a 10 percent evaluation for a tender and painful scar have been met effective February 10, 1999. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118a, Diagnostic Code 7804 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for a back injury with right hand numbness. Factual Background Service medical records show treatment for pain radiating to the right lower quadrant of the back associated with gastrointestinal symptoms on a number of occasions including October 1975, March 1976, May 1977, July 1977, and December 1977. The veteran received treatment for acute back pain in June 1977 after a lifting injury. Prior to this, he denied any specific injury to his back. He received additional treatment for a lumbar strain in August 1977. In February 1978, after a cholecystectomy/appendectomy operation, the veteran reported right hand pain that was resolving. In March 1978 the veteran reported pain in the right hand. These symptoms were felt to be possibly related to an infection incurred during gall bladder surgery. It was noted in another record that the veteran was taking aspirin for hand pain. When the veteran was examined for separation from active duty in August 1978, the back was normal. There was evidence of decreased sensation in the right fifth digit. The impression was cholecystectomy with residual numbness in the lateral right hand versus early carpal tunnel syndrome. A report from March 1980 shows that the veteran reported right wrist tingling and some numbness. He also reported right shoulder pain and gave a history of a right shoulder injury three days before. An annual Reserves examination in June 1981 was negative for any disability of the back or for numbness of the right hand. The veteran did report that approximately one and a half years before he suffered a back sprain while making an arrest and was off for thirty days after which he returned to full duty. He denied recurrent back pain. The examination report indicates that he was employed by the San Diego Police Department at the time of the examination. A Request for Leave for Occupational Illness or Injury form dated in September 1981 shows that the veteran had an occupational injury described as a "cervical strain" incurred in September 1991 that was not a recurrence of an old disability. His treating physician certified that the diagnosis was lumbar strain. The disability was attributed to city employment activities. A private medical report from September 1981 indicates that the veteran had an unspecified back injury and would be unable to perform his Reserves training duties for one month. A Request for Leave for Occupational Illness or Injury form dated in November 1981 describes the veteran's occupational injury as a "back strain." He was being treated for a myofascial strain of the low and mid back that was attributed by his physician to his city employment activities. The date of first disability was in September 1981. In a private orthopedic surgeon's report, dated in November 1981, the surgeon stated that the veteran injured his back in an automobile accident in November 1981 and was presently unable to return to work. In another report dated in January 1982, the surgeon wrote that the injury occurred in an automobile accident in September 1981. A Reserves record dated in January 1982 notes that the veteran was found physically qualified to perform his duties. However, he had been seen by a civilian orthopedic surgeon for a lumbar strain resulting from an automobile accident in September 1981. In a statement submitted in January 1982 the veteran wrote that he worked as a police officer with the San Diego California Police Department and was involved in two automobile accidents in September 1981. He reported that he was assigned to temporary bed rest for back injuries that were still present. A Reserves physical examination report from August 1982 noted that the veteran was under treatment for a cervical and mid- back strain as well as for bursitis of the right shoulder due to a traffic accident in September 1981. The examiner noted that the veteran had a whiplash injury in an automobile accident in September 1981. The injury was not considered disqualifying for duty and no duty restrictions were imposed. A private medical record from September 1993 showed complaints of pain in the right shoulder and numbness in the right arm. The veteran reported a motor vehicle accident in 1979-1980 with an injury to the right shoulder. There was some indication of symptoms in the right fourth and fifth fingers. VA examinations were conducted in November and December 1996. During the November 1996 orthopedic examination the examiner noted that although the presenting problem was listed as a low back injury, the veteran stated that he actually hurt his mid-back in 1977 while picking up an individual. The diagnosis at the time was a low back strain. He told the examiner that after treatment the pain went away. He admitted that later he "reinjured" his upper back and the base of his neck and was treated through workers' compensation for pain in the right shoulder and upper back. The veteran also reported that he developed pain in both of his arms following gallbladder surgery in 1978. He reported numbness of the ulnar two digits of the right hand with pain, numbness and tingling that would come and go. Present symptoms were asserted to include intermittent numbness and tingling in the ulnar two digits of the right hand, increased with heavy use, and a knot in the right posterior shoulder area with pain the right side of the base of the neck and trapezius. After examination, the only diagnosis was myofascial pain syndrome of the right shoulder area. The complaints of numbness and tingling were to be evaluated by a neurologist. On the VA neurology examination the veteran reported tingling in the right hand (mostly the fourth and fifth digits) dating to 1978. He reported that a prior electromyograph (EMG) was normal and he denied any knowledge of a prior diagnosis of carpal tunnel or any other diagnosis. He reported radicular pain from the shoulder into the right arm into digits four and five. The impression was numbness of the right arm in the distribution of the ulnar nerve with a need to rule out cervical radiculopathy. An addition to the report indicated that EMG and nerve conduction velocity (NCV) studies of the right arm were normal. The EMG/NCV report indicated that the electrodiagnostic tests were normal. The clinical impression was of a right rhomboid trigger point and irritation of the ulnar nerve most likely at the wrist. The veteran had reported subscapular pain since an injury to the shoulder in 1977, catching a person who had fallen, and a several-year history of numbness of the right palmar aspect of the right fourth and fifth digits as well as numbness of the dorsal hand or wrist intermittently. In a private report from May 1997 the veteran reported an injury to the right shoulder catching a drunken soldier 20 years before. The physician advised the veteran that tests were consistent with impingement although examination was not showing that at the time. In his substantive appeal the veteran contended, in essence, that his right hand numbness was related to an inservice back injury. In an April 1998 VA outpatient report the veteran reported right back pain associated with stomach cramps. No diagnosis of a back disorder was made. Criteria 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). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which service connection is sought must be considered on the basis of the places, types and circumstances of the veteran's service as shown by service records, the official history of each organization in which the veteran served, medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a) (1999). With chronic disease shown as such in service (or within the presumptive period under § 3.307) 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. This rule does not mean that any manifestation of joint pain in service will permit service connection of arthritis, first shown as a clear-cut clinical entity, at some later date. 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." When the disease identity is established there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) 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. 38 C.F.R. § 3.303(b) (1999). 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) (1999). Disability that is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310 (1999). When aggravation of a non-service-connected condition is proximately due to or the result of a service- connected condition, a veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability that existed prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). For a claim for service connection to be well grounded, there must be competent evidence of a current disability in the form of a medical diagnosis, of incurrence or aggravation of disease or injury in service in the form of lay or medical evidence, and of a nexus between in service injury or disease and current disability in the form of medical evidence. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In addition, in the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The second and third elements of the Caluza test can also be satisfied by evidence that a condition was "noted" in service or during an applicable presumptive period; evidence showing post service continuity of symptomatology; and medical or, in certain circumstances, lay evidence between the present disability and the post service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his lay opinion because he is not a medical health professional and does not constitute competent medical authority. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for a well-grounded claim, Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), a claim based only on the veteran's lay opinion is not well grounded. In determining whether a claim is well grounded, the claimant's evidentiary assertions are presumed true unless inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The United States Court of Appeals for Veterans Claims ("the Court") has held that if the veteran fails to submit a well- grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Brown, 5 Vet. App. 91, 93 (1993); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); 38 C.F.R. § 3.159(a) (1999). See also McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). In Morton v. West, 12 Vet. App. 477 (1999), the Court concluded that the Secretary, by regulation, Manual, and/or Compensation and Pension (C&P) policy cannot eliminate the condition precedent placed by Congress upon the inception of his duty to assist. Absent the submission and establishment of a well-grounded claim, the Court held that the Secretary cannot undertake to assist a veteran in developing facts pertinent to his claim. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after consideration of all of the evidence and material of record in an appropriate case before VA, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999). Analysis The Board reiterates the three requirements for a well- grounded claim: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service injury or disease and a current disability. See Caluza, supra. The veteran maintains that he injured, amongst other things, his back picking up another soldier in service. He maintains that he has residuals of this injury including right hand numbness. The Board's review of the evidentiary record discloses that the veteran was only shown to have suffered an acute low back strain in service. No residual of this back injury was shown at the time of his service discharge. There was no indication of a chronic injury to the back in service. The injuries asserted by the veteran appear to have occurred in the course of post-service employment. There is no medical evidence that the post service injuries are related in any way to the veteran's back treatment in service. The veteran has had ongoing treatment of the back. However, as noted in Savage, evidence to show chronicity must be medical unless it relates to a disorder as to which lay evidence is competent. Savage, 10 Vet. App. 488, 498. A specific back disorder is not currently shown (the diagnosis on the November 1996 orthopedic examination was myofascial pain syndrome of the right shoulder) and the entire evidentiary record is devoid of a link between the veteran's current treatment and his active service. There are notations in post service medical records of the veteran's history of a lifting injury in service. However, a restatement of history does not satisfy the requirement of a competent medical opinion. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). Simply put, there is no evidence that the veteran currently has a chronic acquired disorder of the back which developed in service or during an applicable presumption period. There does not exist competent medical evidence of a relationship between any currently diagnosed disorder and back symptomatology (diagnosed as an acute strain) shown in service. Voerth v. West, 13 Vet. App. 117 (1999); McManaway v. West, 13 Vet. App. 60 (1990); Savage, 10 Vet. App. 488. In essence, the veteran's claim is based solely on his lay opinion that he has a back injury related to a lifting incident in service. While a lay person may report his symptomatology, he does not have the competency of a trained health care professional to express opinions as to diagnosis and/or etiology of a disorder. Assertions as to these matters are therefore not presumptively credible. King, 5 Vet. App. 19, 21. As it is the province of trained health care professionals to enter conclusions that require medical opinions as to causation, Grivois, 6 Vet. App. 136, 139 (1994), the veteran's lay opinion is an insufficient basis upon which to find his claim well grounded. Espiritu, 2 Vet. App. 492. Accordingly, as a well-grounded claim must be supported by evidence, not merely allegations, Tirpak, 2 Vet. App. 609, 611, the appellant's claim of entitlement to service connection for a back injury must be denied as not well grounded. Although the veteran is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. Gilbert, 1 Vet. App. 49, 53. Although the Board has considered and denied the appellant's claim on a ground different from that of the RO, which denied the claim on the merits, the appellant has not been prejudiced by the decision. This is because in assuming that the claim was well grounded, the RO accorded the appellant greater consideration than his claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet. App. 384 (1993). In light of the implausibility of the appellant's claim and his failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision to deny his appeal for service connection for a back injury. Because the veteran has not submitted a well-grounded claim of entitlement to service connection for a back injury, VA is under no obligation to assist him in the development of facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The Board is cognizant, however, that the Court has held that VA may have an obligation under 38 U.S.C.A. § 5103(a)(West 1991) to advise the claimant of evidence needed to complete a claim. Beausoleil v. Brown, 8 Vet. App. 459 (1996). The Court has held that the section 5103(a) duty requires that, when a claimant identifies medical evidence that may complete an application but is not in the possession of VA, VA must advise the claimant to attempt to obtain that evidence. Brewer v. West, 11 Vet. App. 228 (1998). Pursuant to 38 U.S.C.A. § 5103(a), if VA is placed on notice of the possible existence of information that would render the claim plausible and therefore well grounded, VA has the duty to advise the veteran of the necessity to obtain the information. McKnight, 131 F.3d at 1484-1485; Robinette v. Brown, 8 Vet. App. 69. 80 (1995). In this case, the RO has informed the veteran of the evidence necessary to support his claim, thus fulfilling its duty in this instance. The veteran has not indicated the existence of any evidence that has not already been obtained and/or requested that would well ground his claim. 38 U.S.C.A. § 5103(a); Epps, supra. With respect to the complaint of right hand numbness, the evidence of record does not persuasively demonstrate that this disorder resulted from the veteran's back or shoulder injury. The veteran's first documented complaints of this symptomatology occurred after his inservice cholecystectomy and a medical opinion was given that the numbness could be secondary to the operation versus early carpal tunnel syndrome. On discharge right hand numbness was shown. Although the veteran showed little treatment after service for this right hand numbness, according to him he has experienced right hand symptoms, including numbness in the right fourth and fifth digits, since service. Decreased sensation in the fifth metacarpal was shown on discharge from active duty. On VA orthopedic examination in November 1996, some decreased sensation was found in the ulnar distribution of the right hand and there was a suggestion of nerve irritation at the right wrist. Giving the benefit of the doubt to the veteran, the Board is of the opinion that service connection is warranted for a disorder manifested by right hand numbness. The veteran reported numbness since service and he has current abnormal sensation in the same area of his hand as was shown to be affected in service. There is also medical opinion evidence from service that right hand numbness could have a relationship to his cholecystectomy/ appendectomy operation versus carpal tunnel syndrome. In either case the evidence suggests that a disorder of the right wrist has a legally cognizable relationship to service. In the absence of persuasive medical evidence that there is no relationship between the veteran's current symptoms and his service, the Board feels that the evidence is in relative equipoise warranting a grant of service connection. 38 C.F.R. §§ 3.102, 4.3, 3.303(b), 3.310; Savage, 10 Vet. App. 488. II. Entitlement to an initial evaluation in excess of 10 percent for cholecystectomy/appendectomy. Factual Background Reserves examinations from 1988 and 1989 were negative for any effects of the veteran's inservice cholecystectomy/appendectomy. In a Reserves medical history report from July 1992, the veteran reported a history of gallbladder trouble or gallstones. The examiner noted that the gallbladder was removed in 1978 with no problems since. Examination of the abdomen and viscera was negative. A VA examination was conducted in November 1996 and a colonoscopy and barium enema were performed. The veteran reported that after his surgery he had an uneventful postoperative course. He was overweight and he mentioned that he tried to avoid fatty food, but he denied any discomfort in the abdomen. The veteran denied any abnormality associated with the bladder or kidneys and denied hematuria or nocturia. The surgical scar was well healed and was not tender on pressure. The only complaint was rectal bleeding and this was attributed to hemorrhoids, not the cholecystectomy. The diagnosis was post cholecystectomy, doing well with no residual abnormalities. The barium enema, conducted in November 1996, showed changes suggestive of ulcerative colitis or an infectious process as well as a few small diverticula. The colonoscopy, performed in February 1997, was normal and no symptoms were reported. In his substantive appeal the veteran reported that since his operation in 1978 he had a lot of pain with cramps about once a week. He also reported pain in the area of the operation with lifting and problems digesting food. VA records showed treatment in 1998 for abdominal discomfort, gas, and stomach cramps. There was a question of gastroesophageal reflux disease. Another VA examination was provided to the veteran on February 10, 1999. By history he did well after his inservice cholecystectomy but developed some recurrent diarrhea once every two weeks. The examiner stated that by history the symptoms were severe enough to occasionally make him lose a day of work. The symptoms were reportedly worsened by eating fatty foods. The veteran also complained of esophageal reflux following the inservice operation that gradually worsened. He reported daytime and nighttime symptoms including regurgitation and pyrosis. Treatment with Prilosec reportedly helped symptoms. He reported that he was still having daytime symptoms once or twice a week. The examiner noted a slight defect in the lateral fourth of the surgical incision with moderate tenderness on pressure. The veteran stated that he also had some discomfort with bending over. The diagnosis was esophageal reflux following the cholecystectomy, increasing over the last several years. An upper gastrointestinal (upper-GI) series showed a hiatal hernia. Symptoms were improved with Prilosec. A colonoscopy in 1998 because of lower abdominal discomfort and diarrhea was negative. The veteran occasionally would lose a day of work because of diarrhea but he stated that the condition did not generally interfere with his job. Criteria Disability evaluations are determined by the application of a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). In determining the disability evaluation, VA must acknowledge and consider all regulations that are potentially applicable based upon the assertions and issues raised in the record, and explain the reasons and bases used to support its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The percentage ratings contained in the rating schedule represent, as far as practicable, the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. For application of the rating schedule, accurate and fully descriptive medical examinations are required with emphasis on the limitation of activity imposed by the disabling condition. It is essential, both in examinations, and in the evaluation of disability, that each disabling condition be viewed in relation to its history. 38 C.F.R. § 4.1 (1999). See also 38 C.F.R. § 4.2 (1999). The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. The Board notes that when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1999). A 10 percent evaluation is assigned for gall bladder removal with mild symptoms. A 30 percent evaluation is appropriate when there are severe symptoms. 38 C.F.R. § 4.114, Diagnostic Code 7318. Evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (1999). Multiple ratings can be assigned using different diagnostic codes if none of the symptoms or criteria for a rating under a diagnostic code are duplicative of, or overlap the symptoms or criteria for the other diagnostic code under consideration. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). A 30 percent evaluation is assigned for a hiatal hernia where there is persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal arm or shoulder pain productive of considerable impairment of health. A 10 percent rating is appropriate where there are two or more of the symptoms for a 30 percent evaluation but of less severity. 38 C.F.R. § 4.114, Diagnostic Code 7346. A 10 percent evaluation may be assigned for superficial scars that are tender and painful on objective demonstration. 38 C.F.R. § 4.118; Diagnostic Code 7804. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert, 1 Vet. App. 49. When after consideration of all of the evidence and material of record in an appropriate case before VA there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Board has carefully considered the evidence compiled by and on behalf of the veteran and determined that his claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). The veteran's assertions concerning the severity of residuals of his cholecystectomy/appendectomy (that are within the competence of a lay party to report) are sufficient to conclude that his claim for an initial compensable evaluation for that disability is well grounded. King, 5 Vet. App. 19. The Board is satisfied that all relevant facts have been adequately developed for the purpose of adjudicating the claim; no further assistance in developing the facts pertinent to the claim is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Godwin v. Derwinski, 1 Vet. App. 419 (1991); White v. Derwinski, 1 Vet. App. 519 (1991). The evidence shows that the veteran has symptoms of his inservice cholecystectomy including some abdominal pain or cramping, diarrhea, heartburn and gastroesophageal reflux. These symptoms have not been shown to be severe and have not been characterized as severe by treatment providers. Although on VA examination in 1999 the examiner stated that by history diarrhea was "severe enough" to cause the veteran to miss work occasionally, the veteran admitted that his work was flexible enough that his symptoms were not disabling and symptoms of reflux and pyrosis have been controlled with medication. The statement by the examiner does not reflect, in the opinion of the Board, an assessment that the veteran has a severe condition; rather it only indicates an occasionally relative degree of increased symptomatology. As the rating schedule only provides evaluations for mild and severe symptoms, the Board must conclude that the veteran's symptoms are more appropriately described as mild than severe. Therefore the appropriate evaluation under Diagnostic Code 7318 is 10 percent. The criteria for a higher evaluation of 30 percent have not been met; nor have they been nearly approximated for the aforementioned reasons. The Board did consider whether a higher evaluation could be assigned by rating the veteran's condition as a hiatal hernia. However, under that diagnostic code the symptoms likewise most nearly approximate the criteria for a 10 percent evaluation. The veteran has reported pyrosis and regurgitation requiring medication for control. However he has not demonstrated considerable impairment of health due to the symptoms; nor has he shown that his disorder is manifested by substernal arm or shoulder pain. The 10 percent rating is more appropriate as this evaluation is assigned where there is evidence of some of the symptoms required for a 30 percent evaluation, but of less severity. Multiple evaluations cannot be assigned under Diagnostic Codes 7318 and 7346 without violating the prohibition against pyramiding in 38 C.F.R. § 4.14. Esteban, 6 Vet. App. 259, 262. Because Diagnostic Code refers to nonspecific "symptoms" the criteria for the two diagnostic codes overlap. It is noted that on the February 10, 1999 examination, the examiner found that there was irregularity of a portion of the veteran's surgical scar that was moderately tender. This satisfies the criteria of an objectively demonstrated tender and painful scar thereby warranting assignment of a 10 percent evaluation under Diagnostic Code 7804. The 10 percent evaluation is the maximum evaluation assignable under this Diagnostic Code. As the Board noted earlier, this case involves the initial grant of service connection for cholecystectomy/appendectomy. Under Fenderson supra, separate ratings may be assigned for separate periods of time, a practice known as "staged" ratings. The Board finds no basis upon which to predicate assignment of staged ratings for the veteran's cholecystectomy/appendectomy. However, with respect to the decision to grant an initial 10 percent evaluation for a tender and painful cholecystectomy/appendectomy scar, pursuant to Fenderson, staging of ratings is appropriate and necessary. The award is made effective February 10, 1999 and not before because the VA examination report of February 10, 1999 is the first evidence that the cholecystectomy/appendectomy scar was tender and painful. The scar was described as normal and nontender on the earlier VA examination in November 1996. Additional Matter The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). However, the Board is still obligated to seek all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law or regulations. In Bagwell v. Brown, 9 Vet. App. 337 (1996), the Court clarified that it did not read the regulation as precluding the Board from affirming an RO conclusion that a claim does not meet the criteria for submission pursuant to 38 C.F.R. § 3.321(b)(1), or from reaching such conclusion on its own. In the veteran's case at hand, the Board notes that while the RO provided the veteran with the criteria referable to assignment of extraschedular evaluations in November 1997, it did not actually discuss the provisions in light of his claim. The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the VA Undersecretary for Benefits or the Director of the VA Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board does not find the veteran's disability picture to be unusual or exceptional in nature as to warrant referral of his case to the Director or Undersecretary for review for consideration of extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). The record shows that the veteran is gainfully employed and although he would miss an occasional day of work due to diarrhea he has otherwise not experienced any interference in the course of his employment due to the service-connected cholecystectomy/appendectomy. He has received treatment on an outpatient basis, but has never required any inpatient care. The current schedular criteria adequately compensates the veteran for the current demonstrated nature and extent of severity of residuals of his cholecystectomy/appendectomy. Having reviewed the record with these mandates in mind, the Board finds no basis for further action on this question. Therefore, there exists no basis upon which to refer the veteran's case to the Director of the VA Compensation and Pension Service for consideration of extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). ORDER The veteran not having submitted a well-grounded claim of entitlement to service connection for a back injury, the appeal is denied. Entitlement to service connection for a disorder manifested by right hand numbness is granted. Entitlement to an initial evaluation in excess of 10 percent for cholecystectomy/appendectomy is denied. Entitlement to an initial evaluation of 10 percent for a tender and painful cholecystectomy scar is granted effective February 10, 1999, subject to the governing criteria applicable to the payment of monetary awards. RONALD R. BOSCH Member, Board of Veterans' Appeals