Citation NR: 9738587 Decision Date: 11/19/97 Archive Date: 12/02/97 DOCKET NO. 95-35 857 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a prostate disorder. 2. Entitlement to service connection for a right shoulder disability. 3. Entitlement to service connection for gastroesophageal reflux. 4. Entitlement to service connection for a liver disorder. 5. Entitlement to an increased rating for tinea versicolor, current rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Associate Counsel INTRODUCTION The veteran had two periods of active service; from September 1968 to June 1970; and from July 1974 to December 1989. This appeal arises from a July 1995 rating decision of the St. Petersburg, Florida, Regional Office (RO). In that decision, the RO denied service connection for a right shoulder disability, gastroesophageal reflux, and a liver disorder. This appeal also arises from an April 1997 rating decision, in which the RO denied service connection for a prostate disorder, and denied a disability rating in excess of 30 percent for tinea versicolor. The claim for service connection for gastroesophageal reflux will be addressed in a REMAND that follows the decision on the other issues on appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has a prostate disorder, prostatitis, that began during his service. He contends that he has pain and disability in his right shoulder that began during service. He also contends that he has been found to have an enlarged liver. Finally, he contends that the manifestations of his tinea versicolor are sufficiently severe as to warrant a higher disability rating. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claim for service connection for a prostate disorder. It is also the decision of the Board that the claims for service connection for a right shoulder disability and for a liver disorder are not well grounded claims. In addition, it is the decision of the Board that the preponderance of the evidence is against the claim for a disability rating in excess of 30 percent for tinea versicolor. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim for service connection for a prostate disorder. 2. The veteran did not have a prostate disorder during service. 3. On VA medical examination in 1990, the veteran did not have a prostate disorder. 4. The veteran has not been diagnosed with prostate cancer. 5. The veteran has not submitted competent medical evidence of a nexus between disease or injury during service and a current right shoulder disability. 6. The veteran has not submitted competent medical evidence that he currently has a liver disorder. 7. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's claim for an increased disability rating for tinea versicolor. 8. The veteran’s tinea versicolor is currently manifested by extensive lesions, with scaling and constant itching; without ulceration, exudation, crusting, or systemic or nervous manifestations. CONCLUSIONS OF LAW 1. A prostate disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1996). 2. The claim for service connection for a right shoulder disability is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 3. The claim for service connection for a liver disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 4. The criteria for a disability rating in excess of 30 percent for tinea versicolor have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.118, Diagnostic Codes 7806, 7899 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Prostate Disorder The veteran is seeking service connection for a prostate disorder. He reports that he has been treated for prostatitis, but that he has not been diagnosed with prostate cancer. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1996). A person who submits a claim for veteran's benefits 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) (West 1991). The United States Court of Veterans Appeals (Court) has defined a well grounded claim as a plausible claim; one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). When a veteran has presented a well grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), the Department of Veterans Affairs (VA) has a duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). The veteran has asserted that he has had prostatitis since he was in service. Recent VA outpatient treatment records noted that the veteran had a history of prostatitis. The Board finds that the evidence is sufficient to create a well grounded claim for service connection for a prostate disorder. We are also satisfied that all facts relevant to the veteran's claim have been properly developed, so that VA has satisfied its statutory obligation to assist the veteran in the development of his claim. Although the veteran asserted that he had prostatitis during service, his service medical records did not contain any finding of a prostate disorder. In January 1989, he sought outpatient treatment for symptoms described as kidney pain. The treating physician found no genitourinary system disorder, and diagnosed low back muscle spasm. The report of a March 1989 service examination indicated that the veteran’s genitourinary system was normal. On VA examination in March 1990, the examining physician found that the veteran’s prostate was small and benign. VA outpatient treatment records dated between 1994 and 1996 indicated that the veteran reported a history of prostatitis. The veteran has asserted that he has a prostate disorder that is attributable to his exposure to the herbicide Agent Orange during service. Even when a disability is not shown to have been present during service, regulations allow for service connection to be presumed when certain specified diseases develop after exposure to an herbicide agent during service. The diseases listed in the applicable regulations include prostate cancer, but do not include any other prostate disorders. See 38 C.F.R. §§ 3.307(a)(6) (1996); 61 Fed. Reg. 57,586 (Nov. 7, 1996) (to be codified at 38 C.F.R. § 3.309(e)). The veteran has not been diagnosed with prostate cancer, so the regulations pertaining to herbicide exposure are not applicable to his claim for service connection for a prostate disorder. Taking into consideration the absence of medical evidence that the veteran had a prostate disorder during service, and the presence of medical evidence that he did not have a prostate disorder when he was examined soon after separation from service, the Board concludes that the preponderance of the evidence is against the veteran’s claim for service connection for a prostate disorder. The claim is denied. Right Shoulder In a February 1996 hearing at the RO, the veteran reported that he had begun to have pain in his right shoulder during service, since he finished basic training. He stated that he had continued to have the pain since service. He reported that during service he complained about the pain and went to sick call, but that no cause for the pain was identified. He reported that after service he sought VA treatment, and was given pain medication. He reported that he had crepitus in the shoulder joint. The veteran’s service medical records were silent for complaints or disorders involving his right shoulder. On VA examination in August 1970, between the veteran’s two periods of service, the upper extremities were within normal limits. No right shoulder complaint or disorder was noted in March 1989, when the veteran was examined several months prior to his separation from service. In April 1993, private medical records noted that the veteran had significant pain in his right shoulder and hand. The treating physician reported that there was no apparent neurological deficit. The veteran sought VA outpatient treatment on numerous occasions in 1993 and 1994 for pain in his right shoulder. He reported that the pain had been present since the 1970s. Right shoulder x-rays were negative. He underwent a bone scan, but the records in the file did not indicate the results. He sought treatment again in May and June 1995, indicating that pain medication was not effective. The examiner found that x-rays showed no degenerative joint disease. The examiner’s impression was muscle spasm. In August 1995, a VA examiner found that the veteran had pain with movement of the shoulder, and slight limitation of motion in flexion and abduction. There was deep palpable pain at the posterior shoulder. In May and November 1996, the veteran continued to complain of a painful right shoulder. In Caluza v. Brown, 7 Vet.App. 498 (1995), the Court set out three requirements that must be met in order for a claim of service connection to be considered well grounded. First, there must be competent evidence of a current disability (a medical diagnosis). Second, there must be competent evidence of incurrence or aggravation of a disease or injury in service (lay or medical evidence). Third, there must be competent evidence of a nexus between the injury or disease in service and the current disability (medical evidence). The third requirement can be satisfied by a statutory presumption that certain diseases that manifest within certain prescribed periods are related to service. Caluza, at 506. There is evidence that the veteran currently has a right shoulder disorder. Medical records from 1993 to 1996 have noted symptoms, primarily pain, in the right shoulder, and some examiners have provided a diagnosis of muscle spasm. The veteran’s recent statements are the only evidence that he had right shoulder problems during service. There was no notation of right shoulder complaints or problems in the service medical records; VA and service examinations performed in 1970 and 1989 did not reveal any problem. Although the veteran has asserted that his shoulder pain began during service, his earliest recorded report of pain in his shoulder was in 1993. Significantly, no medical professional has provided a finding or opinion that the veteran’s current pain and muscle spasm is linked to injury, disease, or other events during service. In the absence of medical evidence of a nexus between the current condition and service, the claim for service connection is not well grounded, and must be denied. Liver Disease The veteran’s service medical records were silent for complaints or findings of any liver disorder. On VA examination in February 1990, there were no abnormal findings with respect to the liver or abdomen. VA outpatient treatment notes from June 1994 indicated that a sonogram of the veteran’s liver and gallbladder was to be scheduled. Treatment notes from July 1994 indicated that the sonogram produced no significant findings. In his February 1996 hearing at the RO, the veteran reported that a VA physician had informed him that his liver was enlarged. He stated that the physician indicated that enlargement of the liver most often resulted from heavy drinking. He reported that he had not been diagnosed with a liver disease, but that he believed that he might have problems related to his liver later in life. The veteran has reported that he was told that his liver was enlarged, but he has not presented any evidence that he currently has a disease, disorder, or disability involving his liver. Medical evidence of a current disability is required to establish a well grounded claim for service connection. See Caluza, supra, at 506; see also Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of such evidence, the veteran’s claim for service connection for a liver disorder is not a well grounded claim. The claim is therefore denied. Tinea Versicolor The veteran is seeking an increased disability rating for service connected tinea versicolor, which is current rated as 30 percent disabling. The claim for an increased rating is addressed by recent medical records and photographs that provide evidence regarding the manifestations of the veteran’s tinea versicolor. The Board finds that the evidence is sufficient to form a well grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board is also satisfied that all facts relevant to the veteran's claim have been properly developed, so that VA has satisfied its statutory obligation to assist the veteran in the development of his claim. Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1996). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1996). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2 (1996). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. § 4.10 (1996). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (1996). The veteran’s tinea versicolor is currently rated analogously to eczema, under Diagnostic Code 7806. Under that Code, the skin disorder is rated as 50 percent disabling if there is ulceration or extensive exfoliation or crusting, and systemic or nervous manifestations, or if the condition is exceptionally repugnant. A 30 percent rating is assigned if there is constant exudation or itching, extensive lesions, or marked disfigurement. The rating is 10 percent if there is exfoliation, exudation or itching, or if the condition involves an exposed surface or an extensive area. A 0 percent, noncompensable rating is assigned if there is slight, if any, exfoliation, exudation or itching, or if the symptoms are on a nonexposed surface or a small area. 38 C.F.R. § 4.118, Diagnostic Code 7806 (1996). The veteran’s service medical records, and an August 1970 VA examination report, indicated that the veteran had tinea versicolor. Tinea versicolor was again noted on VA examination in February 1990. The veteran reported that he had swelling and increased itching during the summers. The examiner noted lesions with variation in color and slight scaling. Photographs associated with the examination report showed discolored marks on the veteran’s chest, back, arms, and face. Private and VA medical treatment for the veteran’s tinea versicolor is recorded in notes dated in 1993 through 1996. The treatment notes indicated that the veteran had diffuse scaling macules and plaques, with hypopigmentation and itching. It was noted that he also had episodes of angioedema, with itching and hives. The manifestations of the skin disorder were observed on his chest, back, arms, face, hairline, and scalp. In his February 1996 hearing at the RO, the veteran reported that his skin disorder persisted, despite medication. The veteran underwent a VA examination of his skin in April 1997. At that time, he reported very severe itching. He reported that he was taking medication for his tinea versicolor. The examining physician observed numerous macular, hypopigmented skin lesions of various sizes on the veteran’s anterior chest, posterior chest, abdomen, thighs, and face. The examination report included photographs of the veteran’s chest, right shoulder, and back that showed areas of skin with color variation consistent with the examining physician’s description. The medical evidence indicates that the veteran’s tinea versicolor is manifested by extensive lesions, with scaling and constant itching. The condition is not manifested by ulceration, exudation, crusting, or systemic or nervous manifestations. The photographs revealed that the affected skin in mostly on the trunk and arms, and has the appearance of spots and extensive areas of lighter color than the surrounding skin. The appearance of the skin disorder is disfiguring, but not exceptionally repugnant. Overall, the manifestations of the veteran’s tinea versicolor do not meet the rating schedule criteria for a 50 percent disability rating; but are more consistent with the criteria for a 30 percent rating, as is currently assigned. Therefore, the preponderance of the evidence is against the claim for an increase to a rating in excess of 30 percent. ORDER Entitlement to service connection for a prostate disorder is denied. A well grounded claim for service connection for a right shoulder disability not having been submitted, the claim is denied. A well grounded claim for service connection for a liver disorder not having been submitted, the claim is denied. Entitlement to a disability rating in excess of 30 percent for tinea versicolor is denied. REMAND Gastroesophageal Reflux The veteran is seeking service connection for gastroesophageal reflux. VA and private medical records indicated that the veteran was seen in 1993 for chest pain, and that he was found to have reflux esophagitis. The veteran asserts that the reflux began during his service. His service medical records showed treatment in the late 1960s for abdominal and chest pain, and in the late 1980s for chest pain. During service, treating physicians did not provide a clear diagnosis of the cause of the chest pain. As there is evidence of a current gastroesophageal reflux disorder, and some evidence of similar symptoms during service, the Board finds that the veteran’s claim for service connection is plausible and well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). Therefore, VA has a statutory obligation to assist the veteran in the development of his claim. See 38 U.S.C.A. § 5107(a) (West 1991). The Board finds that additional medical findings are needed to determine whether the veteran’s gastroesophageal reflux disorder is service connected. The veteran should undergo an examination by a specialist in gastrointestinal medicine. The examining specialist should provide diagnosis and description of the current condition, and any disorders, of the veteran’s digestive system. The specialist should review the veteran’s medical records and history, and provide an opinion as to the probability that the veteran’s current gastroesophageal reflux is related to service. (CONTINUED ON NEXT PAGE) Accordingly, this case is REMANDED for the following: The RO should schedule the veteran for a medical examination by a specialist in gastrointestinal medicine. Prior to examining the veteran, the gastroenterologist should review the veteran’s claims file and a copy of this REMAND. The examiner should examine the veteran, performing all necessary tests, and provide detailed findings and diagnoses with respect to the current condition of the veteran’s digestive system. The examiner should provide an opinion as to the probability that the veteran’s current gastroesophageal reflux is related to service. After the completion of the foregoing development, the RO should review the case. If the decision remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate consideration, if otherwise in order. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans’ Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1997) (Historical and Statutory Notes). In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. (CONTINUED ON NEXT PAGE) JACK W. BLASINGAME Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1997), 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, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1996). - 2 -