Citation Nr: 0006190 Decision Date: 03/08/00 Archive Date: 03/17/00 DOCKET NO. 95-16 764A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for headaches as secondary to shell fragment wound, right infra-orbital area, with retained foreign body. 2. Entitlement to a rating in excess of 30 percent for post traumatic stress disorder. 3. Entitlement to an increased rating for residuals of a shell fragment wound, scar at L-1, currently evaluated as 10 percent disabling. 4. Entitlement to increased (compensable) rating for residuals of a shell fragment wound, right infra-orbital area, with retained foreign body. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD S. M. Cieplak, Associate Counsel INTRODUCTION The veteran served on active duty from August 1967 to March 1969. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a September 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for post traumatic stress disorder (PTSD) and assigned a 30 percent rating; continued a 10 percent evaluation for residuals of a shell fragment wound, scar at L-1; and continued a noncompensable rating for residuals of a shell fragment wound, right infra-orbital area, with retained foreign body. The veteran also appealed a June 1998 RO decision, which denied entitlement to service connection for headaches as secondary to a shell fragment wound of the infra-orbital area. At his hearing before the Board in November 1999, the veteran advanced the claim of entitlement to the assignment of a higher (compensable) disability evaluation for nasal obstruction and sinusitis. The Board notes that while entitlement to service connection for breathing restriction was initially denied by the aforesaid June 1998 rating determination and a timely notice of disagreement and appeal were submitted with regard to that determination, entitlement to service connection for nasal obstruction and sinusitis was thereafter granted by a rating action of December 1998. In Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997), the U.S. Court of Appeals for the Federal Circuit held that because the veteran's first (notice of disagreement) NOD concerned the "logically up-stream element of service connectedness, the appeal could not concern the logically down-stream element of the compensation level." In Grantham, the Federal Circuit held that a second timely NOD as to the evaluation assigned is necessary to confer jurisdiction over the issue of entitlement to an increased evaluation. Finally, in Holland v. Gober, 10 Vet. App. 433, 435-36 (1997) (per curiam), the Court held that in light of Grantham, an award of service connection consists of a full award of benefits on the appeal initiated by the NOD on that issue and that the decision as to the "compensation level," or rating, and effective-date elements or issues, requires a separate NOD in order for them to be placed in appellate status. The Board has carefully reviewed the claims file and has been unable to identify any document that would satisfy the requirements of an NOD. The Board notes that subsequent to the grant of service connection, the veteran gave testimony at a hearing before the Board in November 1999. In Tomlin v. Brown, 5 Vet. App. 355 (1993), it was held that oral statements at a personal hearing before the agency of original jurisdiction (AOJ), which were later transcribed met the requirement that a notice of disagreement be in writing and directed to the AOJ. 38 C.F.R. §§ 20.201, 20.300, 20.302. Nonetheless, inasmuch as the November 1999 hearing was not before the AOJ and the transcript was not directed to the AOJ, the transcript will not suffice as a functional equivalent of a NOD in this case. Accordingly, with respect to the claim of entitlement to an increased (compensable) rating for nasal obstruction and sinusitis, the Board is without jurisdiction and the matter is referred to the RO for appropriate action. At his hearing before the undersigned sitting as a Member of the Board in November 1999, the veteran asserted additional claims for service connection for degenerative disc disease of the lumbar spine and residuals of a shell fragment wound of the left leg with retained fragment, and for entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. Because those issues are not before the Board on this appeal, they are also hereby referred to the RO for appropriate action. The Board is obligated to seek out 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 laws and regulations. The Board notes that the veteran has submitted photographs of a 2 centimeter scar over the lateral aspect of the right eyebrow. He has also indicated that he has pain in the right temporal area secondary to a shell fragment wound to the face. However, the record establishes entitlement to service connection has been limited to a shell fragment wound scar of the right infra-orbital area only. The Board considers the foregoing constitute additional claims for service connection for additional residuals of shell fragment wounds of the face. Because those issues are not before the Board on this appeal, they are also hereby referred to the RO for appropriate action. The issue of entitlement to the assignment of a higher disability evaluation for PTSD will be addressed in the Remand section of this decision. FINDINGS OF FACT 1. There is no medical evidence to show that headaches were caused or aggravated by the veteran's service-connected shell fragment wound of the right infra-orbital area, with retained foreign body. 2. The veteran's service-connected shell fragment wound scar at L-1 is not productive of any functional impairment. 3. The veteran's service-connected shell fragment wound of the right infra-orbital area is manifested by a retained foreign body, subjective complaints of pain, and clinical observations of a small tender bump on the upper bridge of the nose with a tingling sensation on palpation; there is no underlying muscle injury or more than slight disfigurement. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for headaches as secondary to shell fragment wound, right infra- orbital area, with retained foreign body is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The schedular criteria for a rating greater than 10 percent for residuals of a shell fragment wound, scar at L-1 have not been met. 38 U.S.C.A. §§ 110, 1155, 5107(a)(West 1991); 38 C.F.R. §§ 3.951, 4.118, Diagnostic Code 7803, 7804 (1999). 3. The schedular criteria for a rating of 10 percent, but no higher, for residuals of a shell fragment wound, right infra- orbital area, with retained foreign body have been met. 38 U.S.C.A. §§ 1155, 5107(a)(West 1991); 38 C.F.R. §§ 4.118, Diagnostic Code 7800, 7803, 7804 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Headaches as Secondary to a Shell Fragment Wound 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; 38 C.F.R. § 3.303. Service connection may also be granted for certain chronic disease processes, such as arthritis, when such are manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). The threshold question which must be answered as to this issue is whether the veteran has presented a well grounded claim for service connection. A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, the veteran has "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A well-grounded claim for service connection generally requires (1) a medical diagnosis 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 disease or injury and the present disease or injury. See Epps v. Gober, 126 F.3d. 1464 (Fed. Cir. 1997). Alternatively, the U.S. Court of Appeals for Veterans Claims (Court) has indicated that a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488 (1997). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such condition. That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. If the chronicity provision does not apply, a claim may still be well grounded "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Savage, 10 Vet. App. at 498. If a claim is not well-grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14 (1993). A not well-grounded claim must be denied. Edenfield v. Brown, 8 Vet. App. 384 (1995). If the initial burden of presenting evidence of a well-grounded claim is not met, the VA does not have a duty to assist the veteran further in the development of the claim. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet. App. at 81-82. The veteran has asserted that he suffers from headaches as a residual of shrapnel wounds, right infra-orbital area, with retained foreign body. The Board also observes that while entitlement to service connection for nasal obstruction and sinusitis has been established and the pertinent diagnostic criteria for that disability take in headache manifestations, entitlement to service connection for headaches would be independently considered if a separate headache disability was shown as secondary to the residuals of the shell fragment wound. Service medical records are silent as to complaints, treatment or diagnoses relating to headaches. All medical evidence of headache complaints are of contemporary origin and not within the one year period after separation. Notwithstanding, no medical examiner has identified headaches as a separate disorder. In October 1998, the veteran was afforded a VA examination. In conjunction with that examination report, the diagnosis was chronic sphenoid sinusitis with resultant retension cyst. The examiner commented that the findings were more likely than not the result of impaired sinus drainage due to facial shrapnel wounds. Headaches were considered by the examiner more likely than not related to the chronic sinusitis. The Board also observes that the veteran's opinion as to medical matters, no matter how sincere, is without probative value because he, as a lay person, is not competent to establish a medical diagnosis or draw medical conclusions; such matters require medical expertise. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Headaches in this case are demonstrated as a manifestation of sinusitis only. Without competent medical evidence showing that the veteran's shell fragment wound of the right infra- orbital area have caused or aggravated headaches, the claim must be denied as not well-grounded. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Increased Ratings As a preliminary matter, the Board finds that the appellant's claims of entitlement to increased evaluations for residuals of shell fragment wounds are "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). A claim that a service- connected condition has become more severe is well-grounded where the claimant asserts that a higher rating is justified due to an increase in severity. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 629, 631-632 (1992). The Board also is satisfied that all relevant facts have been properly and sufficiently developed with regard to these issues. Disability ratings are rendered upon the VA's Schedule for Rating Disabilities as set forth at 38 C.F.R. Part 4 (1999). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. The higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. While lost time from work related to a disability may enter into the evaluation, the rating schedule is "considered adequate to compensate for considerable loss of working time from exacerbations proportionate" with the severity of the disability. 38 C.F.R. § 4.1. The present level of disability is of primary concern where service connection has been established and an increase in the disability rating is at issue. Francisco v. Brown, 7 Vet. App. 55, 58 (1996). In adjudicating the well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim, or (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: the appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Residuals of Shell Fragment Wounds According to the Rating Schedule, disfiguring scars of the head, face or neck warrant a noncompensable evaluation if the disfigurement is slight. Moderate disfigurement warrants a 10 percent evaluation. 38 C.F.R. § 4.118, Diagnostic Code 7800. For scars not located on the head, face, or neck, a 10 percent rating is provided for a superficial, poorly nourished scar with repeated ulceration, 38 C.F.R. § 4.118, Diagnostic Code 7803, or for a superficial, tender and painful scar on objective demonstration. 38 C.F.R. § 4.118, Diagnostic Code 7804. Otherwise, a scar will be rated based on the limitation of function of the part affected. 38 C.F.R. § 4.118, Diagnostic Code 7805. Except as otherwise provided in the rating schedule, all disabilities, including those arising from a single disease entity, are to be rated separately, and then all ratings are to be combined pursuant to 38 C.F.R. § 4.25 (1999). Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The United States Court of Appeals for Veterans Claims (hereinafter, "Court") has interpreted 38 U.S.C.A. § 1155 as implicitly containing the concept that the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment of his earning capacity and would constitute pyramiding of disabilities, which is cautioned against in 38 C.F.R. § 4.14. In Esteban, the Court ruled that the veteran, who had residuals of injury to the face, was entitled to separate ratings for disfigurement, a painful scar and muscle injury because the evidence demonstrated distinct symptomatology with respect to each. Thus, as a matter of law, the appellant was entitled to combine his 10 percent rating for disfigurement under Diagnostic Code 7800 with an additional 10 percent rating for tender and painful scars under Diagnostic Code 7804 and a third 10 percent rating for facial muscle injury interfering with mastication under Diagnostic Code 5325. On the veteran's separation examination in March 1969, only a small fragment wound was noted on the right bridge of the nose. The veteran reported that a fragment was retained, but such was not palpable. The Board observes that findings noted in the clinical records prepared on the day that the veteran received treatment for the shell fragment wound to the facial area describe only a single wound to the infra- orbital area without artery or nerve involvement. In April 1974, the veteran was afforded a VA orthopedic examination. Findings revealed no scar in the right infra- orbital region, and the wound was without disfigurement. Diagnosis was residuals of a shell fragment wound, level of L-1 and no scars of residuals of shell fragment wound, right infra-orbital region. The veteran was afforded a VA scars examination in April 1994. The veteran related that he had shrapnel wounds of the right orbit, low back and right inner thigh. He complained of lower back pain. On physical examination, a small one centimeter scar to the right eyebrow laterally was appreciated. No scars were noted on the back. All scars were well healed, normally pigmented with normal sensory and vascular examinations. There was no pain on objective examination. Cosmetic effects were reported as minimal and there was no limitation of function of any part affected. Multiple photographs of the veteran's right facial area and back are associated with the examination. The veteran was afforded another scars examination on February 25, 1998. On physical examination a small tender bump was noted on the inner aspect of the right upper bridge of the nose, which the examiner thought might be a small piece of shrapnel. Also, pressing over the infra-orbital area caused a tingling sensation. Over the lateral aspect of the right eyebrow, there was a 2.0 centimeter slightly tender scar. There also was some slight tenderness noted over the right temple area. The examiner also noted in February 1998 the veteran's report of being wounded in the right lower back. The veteran reported that he felt that his back wound caused numbness and weakness in his left lower extremity and left arm. The examiner noted a light scar, somewhat difficult to discern. Although the examiner noted the veteran's report of tenderness, no objective findings in support of his contentions were documented. The veteran was afforded a VA joints examination in October 1998. The examiner, after conducting physical examination, concluded that the veteran suffered from mild to moderate low back sprain. He specifically noted that there was "no evidence of osteomyelitis or injury related to the shrapnel wounds" in the lumbar region. The examiner further added that he suspected that the veteran's back complaints were a chronic musculoskeletal disorder unrelated to his war injuries. The medical evidence fails to show that the veteran's shell fragment wound scar at L-1 is productive of any functional impairment. The scar is barely noticeable and has not been objectively demonstrated to be tender and painful. The veteran's other underlying back pathology is shown by medical evidence to be unrelated to the wound. The Board observes that the scar continues to be evaluated as 10 percent disabled since February 1974 and is, therefore, protected from reductions due to the provisions of 38 U.S.C.A. § 110 (West 1991) and 38 C.F.R. § 3.951 (1999). Accordingly and after consideration of all of the evidence, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for service-connected shell fragment wound scar at L-1. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). With respect to the shell fragment wound of the right infra- orbital area, resolving all doubt in the veteran's favor, the Board considers the evidence from February 1998 approximates the criteria for 10 percent rating for tender and painful scars under Diagnostic Code 7804. However, as there is no medical evidence of more than slight disfigurement or muscle injury, a separate compensable rating or a rating in excess of 10 percent is not warranted. There is no competent evidence of record which indicates that the veteran's residuals of shell fragment wounds have caused marked interference with employment beyond that which is contemplated under the schedular criteria, or that there has been any necessary inpatient care. Thus, there is no basis for consideration of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). There is nothing in the evidence of record to indicate that the application of the regular schedular standards is impractical in this case. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996). ORDER Entitlement to service connection for headaches as secondary to service connected shell fragment wound of the right infra- orbital area is denied. Entitlement to increased evaluation for a shell fragment wound scar at L-1 is denied. Entitlement to a 10 percent disability evaluation for shell fragment wound of the right infra-orbital area is granted, subject to the provisions governing the award of monetary benefits. REMAND When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to be well-grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). In this case, the veteran's initial claim of entitlement to service connection for PTSD was established as 30 percent disabling by virtue of the instant rating determination on appeal. The Court recently held that, in a claim of disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). However, the Board is of the opinion that additional medical records exist which, as yet, have not been associated with the claims file and could have a bearing on the proper adjudication of this issue. For example, and in addition to statements and testimony received in November 1999 at the hearing before the Board, outpatient treatment records from October 1996 and a VA hospitalization report from January 1997 indicate that the veteran was attending counseling sessions at the Vet Center in Columbus, which records have not been associated with the claims file. The VA's statutory duty to assist the veteran includes the obligation to obtain pertinent treatment records, the existence of which has been called to its attention. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Ivey v. Derwinski, 2 Vet. App. 320 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Accordingly, the issue of entitlement to the assignment of a higher disability evaluation for PTSD is Remanded for the following development: 1. The RO should obtain the names and addresses of all medical care providers who treated the veteran for a psychiatric condition since 1993. After securing any necessary release, the RO should obtain these records (not already in the claims folder) and associate them with the record. If the search for such records have negative results, documentation to that effect from each of such contacted entities should be placed in the claim file. 2. After undertaking any development deemed appropriate in addition to that specified above, the RO should readjudicate the issue of entitlement to the assignment of a higher disability evaluation for PTSD, with due consideration of the principles set forth in Fenderson v. West, 12 Vet. App. 119 (1999). If the determination remains adverse to the veteran, he and his representative should be furnished a supplemental statement of the case and an opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. In taking this action, the Board implies no conclusion, either legal or factual, as to the ultimate outcome warranted. No action is required of the veteran until he is otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). R. F. WILLIAMS Member, Board of Veterans' Appeals