Citation Nr: 0004521 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 96-06 439 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for low back disability. 2. Entitlement to service connection for fungus of the toenails. 3. Entitlement to service connection for a bilateral ankle disorder. 4. Evaluation of residuals of a fracture of the right hand, evaluated as noncompensably disabling from July 16, 1995. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Miyake, Associate Counsel INTRODUCTION The veteran served on active duty from March 1990 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1995 rating decision by the RO that denied claims of entitlement to service connection for bilateral ankle pain, fungus of the toenails, and low back pain. The RO also granted a claim of entitlement to service connection for residuals of a fracture of the right hand and assigned a noncompensable evaluation, effective from the day following the veteran's separation from service-July 16, 1997. Previously, this case was before the Board in July 1997 when it was remanded for additional development. 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. FINDINGS OF FACT 1. No competent medical evidence has been presented to show that the veteran currently has a low back disability. 2. No competent medical evidence has been presented showing that any fungus of the toenails began during military service. 3. Evidence has been presented which implicitly links current bilateral ankle problems with the veteran's military service. 4. The veteran's right hand disability is manifested by mild discomfort and tenderness. CONCLUSIONS OF LAW 1. The claim of service connection for low back disability or fungus of the toenails is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. § 3.303 (1999). 2. The claim of service connection for a bilateral ankle disorder is well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107(a) (West 1991); 38 C.F.R. §§ 3.303, 3.310(a) (1999). 3. A 10 percent rating for residuals of a fracture of the right hand is warranted. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.71a, Diagnostic Code 5215 (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, 1131 (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). 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. Low Back In the present case, the Board finds that the veteran's claim of entitlement to service connection for a low back disability is not well grounded. The veteran claims that he suffers from constant pain in his low back as a result of parachute jumps, marching, and extensive running during service. Even assuming that the veteran experienced pain in service and continues to have such difficulty, no competent medical evidence has been presented to show that he currently has a low back disability. His service medical records are negative for any reference to a back problem. Low back pain was diagnosed by VA in September 1995 and June 1999. Nevertheless, pain is not considered a current disability for which service connection may be granted. See Sanchez-Benitez v. West, No. 97-1948 (U.S. Vet. App. Dec. 29, 1999) (holding that pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.) The Board has taken into consideration the veteran's written statements regarding his low back problems, 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 low back disability. 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. The Board finds that the low back claim is not well grounded on account of failure to present competent medical evidence showing current disability. Consequently, absent current showing of the claimed disability, the Board finds that further development is not required, even a search for additional service medical records would not be helpful. (The Board notes that the veteran has not claimed that low back pain is the result of undiagnosed illness within the meaning of 38 C.F.R. § 3.317 (1999).) Fungus of the Toenails Turning to the issue of entitlement to service connection for fungus of the toenails, the Board also finds that this claim is not well grounded. As noted above, the veteran must present medical evidence of a nexus between an in-service injury or disease and any currently shown disability. At a September 1995 VA examination, the veteran reported that he had had some fungal infection of his toenails, especially the second toenails of both feet, and had been treating this with antifungal cream with some improvement. Fungus of the toenails was diagnosed. The examiner opined that the veteran had only minimal evidence of fungal infection in the second toenails of both feet, but that there was no other deformity in any of the nailbeds or of the skin of the feet. No competent medical evidence has been presented to show that the veteran currently experiences any fungus of the toenails that is attributable to his period of active military service. The Board has taken into consideration the veteran's statements regarding the onset of fungus of the toenails. However, while he is competent to provide information regarding the symptoms he currently experiences and has experienced since military service, there is no indication that he is competent to comment upon etiology or time of onset. 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 showing a link between any current fungus of the toenails and military service, 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 his service connection claims for low back disability or fungus of the toenails well grounded, the Board finds that the RO complied with 38 U.S.C.A. § 5103 and 1.03(a). Ankles Unlike the claims of service connection for fungus of the toenails and low back pain, the Board finds that the veteran's claim of service connection for a bilateral ankle disorder is well grounded. The veteran contends that he has a bilateral ankle disorder as a result of problems he first experienced in service. His service medical records do not show any complaints regarding either ankle. Nevertheless, in September 1995, a VA examiner related the veteran's bilateral ankle pain to the veteran's history of having been in the Airborne service. The examiner did not state, however, whether the veteran suffered from a chronic disability of the ankles. Consequently, the case was remanded in July 1997 for a VA examination and the examiner was asked to provide an opinion regarding whether the veteran suffers from chronic disability of the ankle, and, if so, whether it is at least as likely as not that such disability(ies) first arose during service. At a June 1999 VA examination, ligamentous laxity and early osteoarthritis of the ankles were diagnosed. The examiner, however, did not provide an opinion regarding the etiology of such disability. The reasonable inferences that may be made from reading the September 1995 VA examiner's opinion and the June 1999 diagnoses together lead the Board to conclude that the veteran's claim of service connection for a bilateral ankle disorder is well grounded. In other words, there is a strong suggestion by competent authority that the veteran has some sort of bilateral ankle disorder that is attributable to his military service. Under these circumstances, the Board finds that the claim of service connection for a bilateral ankle disorder is well grounded. Right Hand Disability evaluations are determined by the application of a schedule of ratings that is based, as far as can practicably be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. 38 C.F.R. § 4.27 (1999). In cases where the original rating assigned is appealed, consideration must be given to whether the veteran deserves a higher rating at any point during the pendency of the claim. Fenderson, supra. The veteran's residuals of a fracture of the right (major) hand is currently evaluated as noncompensably disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5215 (1999). Limitation of dorsiflexion of either wrist to less than 15 degrees or limitation of palmar flexion of either wrist to in line with the forearm warrants a 10 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5215 (1999). (A 10 percent rating is the highest rating that may be assigned for limitation of motion of the wrist without ankylosis. Diagnostic Codes 5214, 5215.) A review of the record reveals that the veteran sustained a fracture of his right hand during service. The most recent medical evidence regarding the veteran's right hand is a June 1999 VA hand examination report. That report reflects that the veteran complained of mild discomfort associated with "stress" such as performing certain activities when lifting, pushing, or doing push ups. It was noted that the region of the base of the 5th metacarpal could seem irritable when the weather was cold, and whenever the veteran used his right (dominant) upper limb to push, pull, lift, etc. There was no swelling, and the veteran was not aware of any crepitus or noise. It was also noted that there was no color change and that the area might bruise easily. The veteran was not aware of focal weakness, but believed that his right hand strength may not be at 100 percent. Physical examination revealed that wrist dorsiflexion, palmar flexion, radial deviation, and ulnar deviation were normal, symmetric on each side. There was no tenosynovitis about the distal forearm or wrist on either side. There was no synovitis about the small joints of the wrist, hand, or fingers on either side. There were no anatomic defects. There was no atrophy of the thenar eminence, the hypothenar eminence, or the small muscles of the hand bilaterally. Examination of the right hand revealed no restrictions in motion. The veteran was able to close the fingers of each hand into a strong fist, and had normal (5/5) grip strength. He had normal (5/5) strength of finger abduction and of extension of the fingers at the metacarpophalangeal and at the interphalangeal joints on each side. He also had normal strength of wrist extension on each side. There was an area of focal tenderness on the dorsum of the right hand at the base of the 5th metatarsal. There was no focal tenderness over the metacarpophalangeal joint, no crepitus, and no abnormal motion during attempted passive motion at that joint. The examiner referred to June 1999 x-rays of the right hand, and noted that these x-rays were essentially normal, with the exception of a small, displaced ossicle dorsal to the base of the 5th metacarpal. The examiner further noted that the ossicle was palpable and locally tender. Retained ossicle, near the base of right 5th metacarpal, local tenderness, and little to no deficit were diagnosed. Based on the recent medical evidence, the Board finds that the veteran's service-connected right hand disability warrants a 10 percent rating. It should be noted that the veteran's disability of his right hand is due to a healed injury. He has credibly complained of pain on use of that hand, particularly when performing certain activities such as lifting, pushing, or doing push-ups. The recent medical evidence tends to show that, although he does not have limited motion or grip strength, he has pain caused by this service-connected disability. Thus, the Board finds that, at a minimum, a 10 percent rating is warranted under Diagnostic Code 5215 for residuals of a fracture of the right hand. 38 C.F.R. § 4.40 (1999). The Board, in assigning the 10 percent evaluation, has taken into account the veteran's repeated complaints of pain, and notes that functional loss attributable to pain on use has been considered in arriving at the current assessment. DeLuca v. Brown, 8 Vet. App. 202 (1995). In this regard, the Board notes that pain is a factor to consider, especially when rating motion of a joint. Id. (Functional loss is the inability to perform normal working movements, and must be evident by underlying pathology and some objective indications such as the visible behavior of the veteran. 38 C.F.R. § 4.40.) The Board notes that, given potentially applicable rating criteria, the veteran will only be entitled to a rating higher than 10 percent for limited motion if he has ankylosis. (The highest rating assignable for limited motion of the wrist, short of ankylosis, is 10 percent. 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215 (1999). In this regard, the Board notes that ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. See Lewis v. Derwinski, 3 Vet. App. 259 (1992). Specifically, Diagnostic Code 5214 provides that ankylosis of the major wrist, if unfavorable in any degree of palmar flexion or with ulnar or radial deviation, warrants a 50 percent disability rating. Ankylosis in any other position, except favorable, warrants a 40 percent disability rating. Favorable ankylosis, in 20 degree to 30 degree dorsiflexion, warrants a 20 percent disability rating. The Board also notes that extremely unfavorable ankylosis is rated as loss of use of the hand under 38 C.F.R. § 4.71a, Diagnostic Code 5125 (1999) (loss of use of the major hand is rated as 70 percent disabling under Diagnostic Code 5125). The Board next notes that, under 38 C.F.R. § 4.71a, Diagnostic Code 5053 (1999), replacement of the major wrist entitles the veteran to a minimum rating of 20 percent and a 40 percent rating when it is accompanied by intermediate degrees of residual weakness, pain, or limitation of motion. 38 C.F.R. § 4.71a (1999). The claims file shows that the veteran's right hand is his major hand. Based upon the findings at post-service VA examinations, and a review of all medical records associated with the claims file, there is no evidence that the service- connected residuals of a fracture of the right hand are manifested by ankylosis, and he has not had a wrist replacement. Therefore, he does not meet the requirements to be awarded a greater disability rating under Diagnostic Code 5214, Diagnostic Code 5125, or Diagnostic Code 5053. The Board also notes that, at the September 1995 VA examination, examination of the right hand revealed some scarring in the region of the right hand, and some minimal tenderness over the 3rd and 4th metacarpal bone. Although scarring of the right hand exists as a residual of the in- service procedure, there is no indication in the record that any scarring is poorly nourished, ulcerated, tender and painful, or otherwise symptomatic beyond that contemplated by the symptoms considered in the rating under Diagnostic Code 5215. 38 C.F.R. § 4.118, Diagnostic Codes 7803, 7804, 7805 (1999). Finally, upon review of the entire record, especially the evidence showing the extent of disability since the veteran's separation from service, the Board finds that there is no basis under any of the Diagnostic Codes discussed above for awarding a rating greater the 10 percent at any time during the pendency of this claim. Fenderson, supra. ORDER Service connection for low back disability is denied. Service connection for fungus of the toenails is denied. The claim of service connection for a bilateral ankle disorder is well grounded; to this extent, the appeal is granted. An increased (10 percent) rating for the veteran's residuals of a fracture of the right hand is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Because the Board has concluded that the claim of service connection for a bilateral ankle disorder is well grounded, VA has a duty to assist the appellant in the development of facts pertaining to his claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.159; Epps, supra. Although the veteran has submitted a September 1995 VA examination report, which suggests that his "bilateral ankle pain" originated in service, it is not clear that the September 1995 VA examiner's opinion was based on a thorough review of the veteran's entire history, especially review of records prepared contemporaneous with his military service. VA examination report, most recently from June 1999, does not contain an opinion regarding the etiology of the veteran's then-diagnosed ligamentous laxity and early osteoarthritis of the ankles. Therefore, in light of the uncertainty as to whether the veteran's diagnosed disabilities of the ankles were the sort of disabilities contemplated by the September 1995 opinion, the Board finds that further evidentiary development would be helpful to clarify such a relationship. In cases such as this, VA's duty to assist under 38 U.S.C.A. § 5107(a) includes the duty to provide the appellant with a thorough and contemporaneous medical examination, one that includes a medical opinion as to whether the claimed disability is related to service. Moore v. Derwinski, 1 Vet. App. 401, 405-06 (1991). 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 ankle treatment that has not already been made a part of the record, and 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 to determine the current nature of any left or right ankle disability. The examiner should review the entire claims file, including the veteran's service medical records. The examiner should provide an opinion as to the medical probabilities that any currently diagnosed disability of either ankle is related to military service. All opinions should be reconciled with the opinion set forth in the September 1995 VA examination report. 3. The RO should take adjudicatory action. If the benefit sought is denied, a supplemental statement of the case (SSOC) should be issued. 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 appellant until he receives further notice. The purpose of this remand is to comply with governing adjudicative procedures and to obtain clarifying evidence. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of the remanded issue. The appellant 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