Citation Nr: 0001694 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 94-13 744A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for Raynaud's phenomenon of the hands. 3. Entitlement to service connection for a right knee disability. 4. Evaluation of left knee disability, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from May 1991 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1993 rating decision by the RO that denied claims of entitlement to service connection for hearing loss, Raynaud's phenomenon of the hands, and a right knee disability. The RO also granted a claim of entitlement to service connection for a left knee disability and assigned a noncompensable evaluation, effective from the day following the veteran's separation from service. The veteran was notified of these denials by a letter in November 1993. By rating action of July 1994, the RO increased the rating for left knee disability from zero to 30 percent, effective from the day following the veteran's separation from service. In May 1999, the veteran failed to appear at a scheduled hearing before a traveling member of the Board. The Board notes that the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) recently held that an appeal from an original award does not raise the question of entitlement to an increased rating, but instead is an appeal of an original rating. Fenderson v. West, 12 Vet. App. 119 (1999). Consequently, the Board has characterized the rating issue on appeal as a claim for a higher evaluation of an original award. (The issue of an evaluation of service-connected left knee disability will be addressed in the REMAND that follows the decision below.) FINDINGS OF FACT 1. No competent medical evidence has been presented to show that the veteran currently has a hearing loss disability by VA standards. 2. No competent medical evidence has been presented to show that the veteran currently has Raynaud's phenomenon of the hands; Raynaud's disease was not shown within a year of the veteran's separation from service. 3. No competent medical evidence has been presented to show that the veteran currently has a right knee disability. CONCLUSIONS OF LAW 1. The claim of service connection for bilateral hearing loss is not well grounded. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. § 3.385 (1999). 2. The claim of service connection for Raynaud's phenomenon of the hands is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.07, 3.309 (1999). 3. The claim of service connection for a right knee disability is not well grounded. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated by service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection is also warranted where the evidence shows that a chronic disability or disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). When disease is shown as chronic in service, or within a presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (1999). If a reasonable doubt arises regarding service origin, or any other point, it should be resolved in the veteran's favor. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.102 (1999). A person who submits a claim for VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Only if the claimant meets this burden does VA have the duty to assist him in developing the facts pertinent to his claim. 38 U.S.C.A. § 5107(a) (West 1991); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom, Epps v. West, 118 S. Ct. 2348 (1998). If the claimant does not meet this initial burden, the appeal must fail because, in the absence of evidence sufficient to make the claim well grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive, but only possible, to satisfy the initial burden of 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). To be well grounded, however, a claim must be accompanied by evidence that suggests more than a purely speculative basis for granting entitlement to the requested benefits. Dixon v. Derwinski, 3 Vet. App. 261, 262-63 (1992). Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes of determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence to the effect that the claim is plausible or possible is required. Murphy, 1 Vet. App. at 81. A claimant cannot meet this burden merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Espiritu, 2 Vet. App. at 495. The Court has held that competent evidence pertaining to each of three elements must be submitted in order to make a claim of service connection well grounded. There must be competent (medical) evidence of a current disability, competent (lay or medical) evidence of incurrence or aggravation of disease or injury in service, and competent (medical) evidence of a nexus between the in-service injury or disease and the current disability. This third element may be established by the use of statutory presumptions. 38 C.F.R. §§ 3.307, 3.309 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d at 1468. Hearing Loss For the purposes of applying the laws as administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999). The veteran claims that his hearing loss had its onset during service. Nevertheless, in the present case, the Board finds that the veteran's claim of service connection for hearing loss is not well grounded. No competent medical evidence has been presented to show that he currently has a hearing loss disability as defined by VA standards. The veteran's service records indicate that his military occupational specialty was a carpentry and masonry specialist. His service medical records include a March 1991 pre-enlistment examination, when audiometry revealed puretone thresholds of 5, 5, 5, 5, and 0 decibels in the left ear at 500, 1000, 2000, 3000, and 4000 Hz, respectively, and 5, 5, 5, 15, and 5 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 Hz, respectively. A September 1992 Medical Evaluation Board (MEB) examination report shows that audiometry revealed puretone thresholds of 25, 25, 25, 20, and 10 decibels in the left ear and 25, 20, 15, 20, and 20 decibels in the right ear at 500, 1000, 2000, 3000, and 4000 Hz, respectively. The Court has held that hearing impairment is deemed present when an auditory threshold is greater than 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 158 (1993). Nevertheless, the Board notes that, although increased thresholds in the veteran's ears were noted in service in September 1992, this examination report does not show that the veteran met the criteria set forth in 38 C.F.R. § 3.385, i.e., he did not have either left or right ear hearing loss disability by VA standards. The Board has taken into consideration the veteran's written statements regarding his hearing loss problems, but no current finding of hearing loss as set forth in 38 C.F.R. § 3.385 has been provided by one competent to do so. In short, while the veteran is competent to provide information regarding the symptoms he currently experiences and has experienced since military service, he has not been shown competent to conclude that he has hearing loss disability by VA standards. Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); Espiritu, 2 Vet. App. at 494-95. Consequently, absent the presentation of competent medical evidence of current disability, the veteran's claim may not be considered well grounded and must be denied. Raynaud's Phenomenon The veteran contends that he has Raynaud's phenomenon of the hands which had its onset in service. Raynaud's disease is considered "chronic" within the meaning of 38 C.F.R. § 3.307 (1999). Consequently, if such disability is manifested to a compensable degree within a year of the veteran's separation from service, a presumption of service incurrence or aggravation applies. 38 C.F.R. §§ 3.307, 3.309 (1999). In the present case, the veteran's service medical records show that, in November 1992, the veteran was seen for complaints of his hands turning "blue/cold/painful" when in the cold. The assessment was questionable Raynaud's of the hands. The remaining records are negative for any complaints of, treatment for, or diagnosis of Raynaud's phenomenon. Two months after discharge from service, at a January 1993 VA examination, the veteran reported that, during service, he had found that significant coolness affected the circulation distally in his limbs by producing a bluish discoloration of the fingertips, hand, nose, and ears. Examination of the skin disclosed no abnormalities. Temperature and color of the skin, especially the hands on examination, revealed no abnormalities. Skin color and temperature to touch were normal. The diagnoses included no apparent evidence of disease of the arteries or veins. Subsequent VA examinations conducted in May 1994, July 1997, and June 1999, did not contain a diagnosis of Raynaud's phenomenon. The Board has taken into consideration the veteran's statements regarding his problems with Raynaud's phenomenon, but no current diagnosis has been provided by one competent to do so. In short, while the veteran is competent to provide information regarding the symptoms he currently experiences and has experienced since military service, he has not been shown competent to provide a medical diagnosis regarding current Raynaud's phenomenon. Layno, 6 Vet. App. at 470; Grottveit, 5 Vet. App. at 92-93; Espiritu, 2 Vet. App. at 494-95. Consequently, absent the presentation of competent medical evidence of current disability, the veteran's claim may not be considered well grounded and must be denied. Additionally, there is no basis in the evidence for finding that the veteran had Raynaud's disease during the one-year presumptive period following his separation from service. 38 C.F.R. §§ 3.307, 3.309. Right Knee The veteran claims that his right knee disability had its onset in service. In the present case, the Board finds that the veteran's claim of service connection for a right knee disability is not well grounded. No competent medical evidence has been presented to show that he currently has such a disorder. His service medical records show that, in June 1991, he had received treatment for complaints of bilateral knee pain. The assessment was tendinitis of both knees. However, subsequently prepared service medical records, including a September 1992 MEB examination report, are negative for any reference to a right knee disability. Moreover, two months after discharge from service, there was no medical evidence of the claimed disorder shown on VA examination conducted in January 1993. X-rays of the right knee were normal. Subsequently conducted VA examinations (May 1994, July 1997, and June 1999) likewise do not contain a diagnosis of a right knee disability. The Board has taken into consideration the veteran's statements regarding his continued problems with his right knee, but no current diagnosis has been provided by one competent to do so. In short, while the veteran is competent to provide information regarding the symptoms he currently experiences and has experienced since military service, he has not been shown competent to provide a medical diagnosis regarding any right knee disability. Layno, 6 Vet. App. at 470; Grottveit, 5 Vet. App. at 92-93; Espiritu, 2 Vet. App. at 494-95. Consequently, absent the presentation of competent medical evidence of current disability, the veteran's claim may not be considered well grounded and must be denied. The Board also notes that it has been contended on the appellant's behalf that the Board should determine whether the RO complied with M21-1, Part III, 1.03(a) (Change 50) (Feb. 23, 1996) and M21-1, Part VI, 2.10(f) (Change 48) (Aug. 5, 1996). The provisions of M21-1 Part VI, 2.10(f) provide that "the duty to assist will prevail while development is undertaken." A careful reading of this provision clearly shows the initiation of this "development" is predicated on the claim being "potentially plausible on a factual basis." Essentially, "potentially plausible on a factual basis" means the claim is well grounded. Epps, supra. Consequently, development is undertaken pursuant to M21-1 Part VI, 2.10(f) only after the appellant has presented a well-grounded claim. As the appellant has not done so here, M21-1 Part VI, 2.10(f) is not applicable to his case. M21-1 Part III, 1.03(a) provides that "[b]efore a decision is made about a claim being well-grounded, it will be fully developed." However, only when a claim is well grounded does VA have an obligation to assist the claimant in "developing the facts pertinent to the claim." Robinette v. Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added) (referring to evidentiary development required by the duty to assist under 38 U.S.C.A. § 5107(a)); Epps, supra; Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996). In contrast to the evidentiary development referred to in 38 U.S.C.A. § 5107(a), the provisions of M21-1, Part III, 1.03(a) refer to development of the claim. The requirement to fully develop a claim - as compared to development of the evidence underlying the claim - merely demands that VA ensure that the appellant has not filed a defective or incomplete application. See 38 U.S.C.A. § 5103 (West 1991); Robinette, 8 Vet. App. at 78. See 38 C.F.R. §§ 3.1(p), 3.160(a) (defining a claim as an application for VA benefits); see also M21-1, Part III, 1.01(a) (discussing development of pertinent facts "concerning a well-grounded claim"); M21-1, Part VI, 2.10(f) (discussed, supra); compare M21-1, Part III, 2.01(c) (during initial screening stage of claims processing, the RO shall review all applications and evidence immediately to determine if "a claim" is incomplete and requires "further development"). Indeed, M21-1, Part III, 1.03(a) relies upon Grottveit, supra, in which the Court stated that, "[i]f the claim is not well grounded, the claimant cannot invoke the VA's duty to assist [under 38 U.S.C.A. § 5107(a)] in the [evidentiary] development of the claim." Grottveit, 5 Vet. App. at 93, citing 38 U.S.C.A. § 5107(a). Therefore, until an appellant has submitted a well-grounded claim, VA is under no duty to assist the appellant in establishing the evidentiary elements of his claim. Morton v. West, 12 Vet. App. 477 (1999). In other words, the requirement to "fully develop" a claim pursuant to M21-1, Part III, 1.03(a) is not identical to the duty to assist which arises after a well-grounded claim has been submitted; instead, it appears merely to reiterate the duty to inform under 38 U.S.C.A. § 5103. Consequently, ensuring that a claim is "fully developed" under M21-1 Part III, 1.03(a) means that, where the appellant's application for benefits is incomplete, VA shall notify the appellant of the evidence necessary to complete the application. Id. at 80. As there is no indication in the present case that the appellant's application is incomplete, or that he is aware of evidence which would render any of his service connection claims well grounded, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). ORDER Service connection for hearing loss is denied. Service connection for Raynaud's phenomenon of the hands is denied. Service connection for a right knee disability is denied. REMAND As for the veteran's claim for a higher evaluation for a left knee disability, the Board finds that, given the veteran's recently made argument that he experiences pain in his left knee, and that he experiences a greater functional loss upon prolonged use of his left knee, which in turn affects his ability to retain employment, further evidentiary development is required. This is so because the available medical evidence does not contain information relating to application of 38 C.F.R. §§ 4.40, 4.45 (1999). The Court has held that, when evaluating joints on the basis of limited motion, VA has a duty to determine whether the joint in question exhibits weakened movement, excess fatigability, incoordination, or other functional loss, and whether pain limits functional ability during flare-ups or when the joint is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 (1999). The Court has indicated that these determinations should be made by an examiner and should be portrayed by the examiner in terms of the additional loss in range of motion due to these factors (i.e., in addition to any actual loss in range of motion noted upon clinical evaluation). DeLuca, supra. A VA examination was conducted in June 1999; however, it does not appear that the examiner undertook a sufficient DeLuca- type assessment. The full extent of impairment, especially with repeated or prolonged use, is not clear from the report of that examination. Therefore, a remand is required for a new examination. In addition, the Board notes that, although the veteran's left knee has been rated only under Diagnostic Code 5257, it appears that the basis of the rating was the veteran's limitation of extension. Apparently, the RO had conceded that limitation of extension is a symptom of the veteran's service-connected left knee disability, warranting a 30 percent rating. Consequently, the RO should consider whether the veteran is entitled to a separate rating. See VAOPGCPREC 23-97 (July 24, 1997). Accordingly, the case is REMANDED to the RO for the following: 1. The RO should ask the veteran to provide information regarding any evidence of past or current treatment for his left knee that has not already been made part of the record. The RO should assist him in obtaining such evidence following the procedures set forth in 38 C.F.R. § 3.159 (1999). 2. The RO should then schedule the veteran for a VA orthopedic examination. The claims folder, along with all additional evidence obtained pursuant to the request above, should be made available to the examiner for review. The examiner should make all findings necessary to determine the current severity of the left knee debility. See DeLuca, supra. Any indicated studies should be accomplished. The examiner should describe any recurrent subluxation or lateral instability in terms of "slight," "moderate," or "severe" disability. The examiner should record the range of motion observed on clinical evaluation. Any pain with motion should be noted. The examiner should indicate whether the left knee exhibits weakened movement, excess fatigability, incoordination, or pain due to repeated use or flare-ups, etc., and should equate these problems to additional loss in range of motion (beyond that which is demonstrated clinically). If these determinations cannot be made, the examiner should so indicate and explain why this cannot be done. If the veteran is examined at a point of maximum debility, this should be noted. The examiner should also explain whether there is adequate pathology demonstrated to support each of the veteran's functional losses. The rationale for the examiner's opinions should be explained in detail. 3. Following completion of the foregoing, the RO should review the evidence. (Consideration should be given to whether separate ratings ought to be assigned for the left knee. VAOPGCPREC 23-97.) Then, the RO should re- adjudicate the claim and consider whether a "staged" rating is appropriate. Fenderson, 12 Vet. App. at 119. If the benefit sought is denied, a supplemental statement of the case (SSOC) should be issued. If the veteran does not appear for the examination, the SSOC should include reference to the provisions of 38 C.F.R. § 3.655 (1999). After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required of the veteran until he receives further notice. The purpose of this remand is to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the remanded issue. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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. 1999) (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. MARK F. HALSEY Member, Board of Veterans' Appeals