Citation Nr: 0812203 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 04-20 679 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable initial disability rating for residuals of cellulitis of right mandible. 2. Entitlement to service connection for diabetes mellitus, type I. 3. Entitlement to service connection for panic disorder. 4. Entitlement to service connection for facial scarring. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The veteran served on active duty from January 1992 to February 1995. This appeal arises from a December 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO granted service connection for residuals of cellulitis of the right mandible, claimed as facial infection, and assigned a noncompensable disability rating, effective from July 25, 2002. In that same rating decision, the RO denied entitlement to service connection for diabetes mellitus, panic disorder, and facial scarring. All these issues were the subject of a Board of Veterans' Appeals remand in August 2007. FINDINGS OF FACT 1. The veteran's residuals of cellulitis of the right mandible consist of two scars; each of which is less than 13 cm. long and .6 cm. wide, does not cause functional impairment, and is not disfiguring. 2. The veteran's diabetes mellitus, type I, was not initially manifested during service and is not otherwise related to a disease or injury in service. 3. The veteran does not have a current disability involving facial scarring. CONCLUSIONS OF LAW 1. The criteria for a compensable initial disability rating for residuals of cellulitis of the right mandible have not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.118, Diagnostic Code 7800, 7805 (2007). 2. Diabetes mellitus, type I was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). 3. Facial scarring was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the VA's duty to notify was satisfied by way of a letter sent to the veteran in August 2002, that fully addressed all four notice elements and was sent prior to the initial RO adjudication of the veteran's claims for service connection. This letter informed the veteran of what evidence was required to substantiate the claims and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information in his possession to the AOJ. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated-it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473, 491, 500 (2006). Thus, as the veteran's claim for a compensable initial disability rating for residuals of cellulitis of the right mandible was appealed directly from the initial rating assigned, no further action under the section 5103(a) is required. See also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); 2007); Dunlap v. Nicholson, 21 Vet App 112 (2007). VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record discloses that VA has met its duty to assist the veteran in obtaining any relevant evidence available to substantiate his claim. All available records pertaining to the issues resolved herein have been obtained and associated with the claims folder. VA examinations have been conducted. The veteran declined the opportunity to testify before a Veterans Law Judge in April 2004. We therefore conclude that VA has satisfied both its duty to notify and assist the veteran in this case. Standard of Review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of 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; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all of the evidence in the veteran's claim folder, which includes service medical records, VA outpatient treatment records, the veteran's lay statements in support of his claim, and VA compensation and pension examination reports. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by the veteran or on his behalf. The Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to each claim. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). Compensable Initial Disability Rating At the outset, the Board notes that the veteran's claim of entitlement to a compensable initial disability rating for residuals of cellulitis of right mandible is on appeal from the initial assignment of the disability rating. As such, the veteran's claim contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the veteran's favor. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). The veteran's residuals of cellulitis of the right mandible is currently evaluated as noncompensably (zero percent) disabling under 38 C.F.R. § 4.118, Diagnostic Code 7805. Diagnostic Code 7805 provides that scars causing limitation of function of the affected part are rated based on those limitations. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2007). However, Diagnostic Code 7800 applies to disfigurement of the head, face, or neck and provides that a 10 percent disability rating is warranted where there is one of the eight characteristics of disfigurement. The eight characteristics of disfigurement are defined as: a scar five or more inches in length, a scar at least one- quarter inch wide at the widest part, the surface contour of the scar is elevated or depressed on palpation, the scar is adherent to underlying tissue, the skin is hypo or hyper pigmented in an area exceeding six square inches, the skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches, there is underlying soft tissue missing in an area exceeding six square inches; and the skin is indurated and inflexible in an area exceeding six square inches. 38 C.F.R. § 4.118, Diagnostic Code 7800 (2007). Medical treatment reports contained in the claims file do not reflect any complaints or findings regarding scars on the veteran's neck, or indeed, any other residuals of the right mandible cellulitis. Service connection was granted based upon the veteran's service medical records, rather than upon current medical evidence. Thus, there is no medical evidence of record upon which to base an evaluation as to whether a compensable disability rating is warranted from July 2002 until September 2007, when the veteran underwent a VA compensation and pension examination. The veteran's own contentions focus on the episode of cellulitis rather than on his current symptoms; he does not identify any particular impairment arising from the current residuals in his written statements, which would support the assignment of a compensable disability rating. On examination in September 2007, two scars were observed. A vertical scar along the border of the sternocleidomastoid muscle was seen on the right side of the anterior neck. This scar measured 6 centimeters (cm.) wide by .5 cm. long. A 3 cm. long by .3 cm. wide tracheostomy scar was also observed. No evidence of skin breakdown or underlying soft tissue damage was noted, and the scars were the same color and texture of normal skin. No tenderness to palpation, no limitation of motion, or loss of function was noted. The examiner concluded the veteran's head, face, and neck were not disfigured. The Board finds no support for a compensable initial disability rating for residuals of cellulitis of the right mandible. A review of his VA outpatient treatment records reveals no complaints of or treatment for his service- connected scars. Further, during the September 2007 VA examination, no limitation of motion or function was noted. Thus, a compensable disability rating pursuant to Diagnostic Code 7805 is not warranted. With regard to the characteristics of disfigurement, the September 2007 examination report reveals no evidence of disfigurement. Neither scar is more than 13 cm. long or .6 cm. wide. The surface contours of the veteran's two scars are not elevated, depressed, or adherent to underlying tissue. In addition, the veteran's scars are the same color as the surrounding skin, and there is no evidence of abnormal texture. The soft tissue beneath the scars is not missing and the veteran's skin is not abnormally hardened or inflexible. There is no objective evidence of even one characteristic of disfigurement; therefore, the criteria for a 10 percent disability rating pursuant to Diagnostic Code 7800 are not met. The evidence does not reveal manifestations of the veteran's residuals of cellulitis of the right mandible warranting a rating higher than already granted for a specific period or staged rating at any time since the effective date of the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson, 12 Vet. App. 119, 126-27 (1999). Service Connection Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. §§ 1110, 1131. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). Service connection may also be granted for a disability which is proximately due to or the result of a service connected disease or injury. In addition, a disability which is aggravated by a service-connected disability shall be service-connected. When service connection is established for a secondary condition it shall be considered as part of the original condition. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc), reconciling Leopoldo v. Brown, 4 Vet. App. 216 (1993) and Tobin v. Derwinski, 2 Vet. App. 34 (1991). Diabetes mellitus, type I Service medical records reveal no complaints of or treatment for diabetes or high blood sugar. The veteran's sugar was within normal limits at enlistment into service in August 1991, and no abnormalities were noted on examination. The veteran's service medical records were reviewed for separation in February 1995, and no disqualifying defects were noted. May 2000 private medical treatment records reflect the earliest evidence of elevated blood glucose levels, and a review of VA outpatient records reflects ongoing treatment for diabetes mellitus, type I. The veteran underwent a VA compensation and pension examination in September 2007, at which time he reported daily insulin use and a restricted diet. The examiner diagnosed diabetes mellitus, type I. After reviewing the claim folder, the examiner concluded that it was not likely that the veteran's diabetes mellitus, type I first manifested in service or is the result of his service-connected residuals of cellulitis of the right mandible. The examiner noted that diabetes often manifests itself for the first time during an infection, and further, that infection often aggravates diabetes. The examiner noted that the veteran's glucose was within normal limits while hospitalized for cellulitis, and further, the veteran demonstrated no symptoms of diabetes during the period between his hospitalization and his separation from service in 1995. The examiner concluded that if the veteran had pre- diabetes before or during treatment for facial cellulitis, diabetes or overt hyperglycemia would have appeared. Instead, the first symptoms of hypoglycemia did not appear until four to five years later. In this case, there is no dispute that the veteran is currently receiving medical treatment for diabetes mellitus, type I. The question is whether the veteran's current disability is related to service in any way. The initial diagnosis of diabetes mellitus, type I was not made until 2000, approximately five years after the veteran's discharge from active duty. The veteran underwent a physical examination at separation from service in February 1995, at which time neither diabetes nor chronic symptoms which may be medically attributed to his current diagnosis of diabetes were noted. Despite competent medical evidence of a current disability, direct service connection, based upon incurrence during active service, is not warranted. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The lengthy period without treatment and lack of documented evidence of continuity of symptomatology weighs against the claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Moreover, the Board finds that the veteran's contentions regarding the etiological relationship between the currently diagnosed diabetes mellitus, type I and active service are not probative, given the content of his service records. In this regard, the veteran's service medical records do not reflect complaints of or treatment for chronic symptoms which may be medically attributed to his current diagnosis of diabetes mellitus, type I. The veteran has asserted that a right mandible infection treated in service caused him to develop a pre-diabetic condition; however, there is no competent evidence of elevated blood glucose levels until May 2000, several years after separation from service. As a lay person he is not shown to have the necessary medical competence to diagnose a disability or offer probative opinions as to medical etiology. Thus, no connection to service is shown by the medical evidence of record. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Further, after performing a clinical examination and reviewing the claims folder, a VA physician concluded the veteran's diabetes mellitus, type I, did not have its onset in service; and further, found no relationship between the veteran's diabetes and the infection treated during active service. Specifically, the examiner noted that if the cellulitis in service had caused a pre-diabetic condition, high glucose levels would have been observed during service. The examiner concluded that since the veteran did not demonstrate high glucose levels until 2000, it was unlikely that his currently diagnosed diabetes mellitus, type I was caused by the infection. There is no other competent medical opinion of record which relates the veteran's current disability to the infection treated during service. The preponderance of the evidence is against the veteran's claim and service connection for diabetes mellitus, type I is denied. Facial scarring The veteran seeks service connection for facial scarring, which he relates to surgeries performed in service to treat cellulitis of the right mandible. The veteran underwent a VA compensation and pension examination in September 2007. A tracheostomy scar and a vertical scar along the border of the sternocleidomastoid muscle were noted. Both scars are located on the veteran's neck. No other scars were noted, to include any located on the veteran's face and the examiner concluded the veteran's head, face, and neck were not disfigured. A review of the veteran's VA outpatient treatment records reflects no complaints of or treatment for facial scarring. Service connection has been established for residuals of cellulitis of the right mandible, which include a tracheostomy scar and a vertical scar along the border of the sternocleidomastoid muscle. However, the evidence does not reflect a competent diagnosis of a chronic disability characterized by scarring affecting his face, as opposed to his neck. A threshold requirement for the grant of service connection for any disability is that the disability claimed must be shown present. 38 U.S.C.A. §§ 1110, 1131. The United States Court of Veterans Appeals has interpreted the requirement of current disability thus: Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1110. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the absence of the claimed disability, service connection must be denied. ORDER A compensable initial disability rating for residuals of cellulitis of right mandible is denied. Service connection for diabetes mellitus, type I, is denied. Service connection for facial scarring is denied. REMAND The veteran seeks service connection for an acquired psychiatric disability, which he contends is related to treatment for cellulitis during active service. A VA psychiatric evaluation was performed in September 2007, at which time an Axis I diagnosis of specific phobia was rendered. The VA examiner noted statements made by the veteran during a June 2002 VA psychiatric assessment which referred a history of "significant anxiety symptoms" during childhood related to his fears of a grave illness or injury. The examiner concluded that the veteran's current disability predated military service and is not the result of his in- service treatment for cellulitis. The VA examiner did not render an opinion regarding whether the veteran's specific phobia underwent an increase in severity beyond the natural progression of the disease during service. In this regard, it appears that the veteran was seen in the mental health clinic during service. Additionally, it appears that the veteran continues to receive psychiatric care, from the VA healthcare system. Thus, the claim must be remanded to obtain the outstanding service and post-service medical records and an opinion as to whether the veteran's currently diagnosed psychiatric disability was aggravated by active service. Accordingly the appeal must be remanded for the following actions: 1. The RO should secure the veteran's service mental health records through official channels, including outpatient records from the Lackland and Charleston Air Force Bases, and any inpatient mental health records, as well. 2. The RO should obtain all records of VA mental health treatment afforded to the veteran at the West Palm Beach VA Medical Center, which are not contained in his claims file for inclusion in the file. 3. After obtaining the records requested above, the veteran's claims file should be returned to the VA physician who previously examined the veteran in September 2007 for an addendum to the previous report. If that physician is unavailable, the veteran should be afforded another VA examination to address the questions set out below. The claims folder, including the newly-obtained records, must be made available to the examiner for review, and the examiner should acknowledge such review in the examination report. Specifically, the examiner should be asked to provide an opinion as to the following: (i) Is it at least as likely as not (that is, probability of 50 percent or better) that the veteran had a psychiatric disability prior to service? (ii) If the veteran's psychiatric disability pre-existed service, is it at least as likely as not that in service, the disability permanently increased in severity beyond the natural progression expected for such a disability, (as opposed to the veteran experiencing a temporary in- service exacerbation)? 4. After undertaking any additional development which may become apparent in addition to that requested above, the RO should re-adjudicate the issue on appeal. If the benefit sought on appeal remains denied, the veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond. The appeal should thereafter be returned to the Board for further review, if in order. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs