Citation Nr: 0016404	
Decision Date: 06/21/00    Archive Date: 06/28/00

DOCKET NO.  96-38 193	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to service connection for neck disability and 
right shoulder disability.

2.  Evaluation of residuals of a right ankle injury with 
degenerative changes, rated as noncompensably disabling from 
August 27, 1995.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Miyake, Associate Counsel



INTRODUCTION

The veteran served on active duty from January 29, 1991, to 
January 28, 1995.  He also served for 5 months and 29 days on 
active duty prior to January 29, 1991, and he had service in 
a reserve component.

This matter comes before the Board of Veterans' Appeals 
(Board) on appeal from a March 1996 rating decision by the RO 
that denied claims of entitlement to service connection for 
torn muscles of the neck and right shoulder, and repair for 
chronic dislocation of the right shoulder.  The RO also 
granted a claim of entitlement to service connection for 
residuals of a right ankle injury with degenerative changes 
and assigned a zero percent evaluation effective from 
August 27, 1995.

In a substantive appeal, received in August 1996, the veteran 
indicated that he did not wish to pursue the claim of service 
connection for post-operative repair for chronic dislocation 
of the right shoulder.  Therefore, this issue is not before 
the Board and will not be addressed.  38 U.S.C.A. 
§ 7105(d)(3) (West 1991); 38 C.F.R. § 20.204 (1999).  
However, the veteran appears to have raised the issue of 
entitlement to service connection for a back disability.  
This issue has not yet been addressed by the RO and is 
referred for appropriate action.

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) has 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 neck or right shoulder 
disability.

2.  The veteran's right ankle disability is manifested by 
aching with prolonged walking or running which, when 
considered in conjunction with the loss of 10 degrees of 
dorsiflexion with pain on forced eversion, equates to 
moderate loss of ankle motion, but no more.


CONCLUSIONS OF LAW

1.  The claim of service connection for neck disability or 
right shoulder disability is not well grounded.  38 U.S.C.A. 
§§ 1110, 1111, 1153, 5107(a) (West 1991); 38 C.F.R. 
§§  3.303, 3.304, 3.306 (1999).

2.  An increased (10 percent) rating for service-connected 
residuals of a right ankle injury with degenerative changes 
is warranted.  38 U.S.C.A. §§ 1155, 5107 (West 1991); 
38 C.F.R. §§ 4.1, 4.27, 4.71a, (Diagnostic Code 5271) (1999).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Neck and Right Shoulder

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, 81 (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.

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).  Active military, naval, or air 
service includes any period of active duty for training 
during which the individual concerned was disabled from a 
disease or injury incurred or aggravated in the line of duty, 
and any period of inactive duty training during which the 
individual concerned was disabled from an injury incurred or 
aggravated in the line of duty.  38 U.S.C.A. § 101(24) (West 
1991).  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).

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.

The veteran claims that he suffers from torn muscles and 
muscle spasms in the neck and right shoulder as a result of 
an injury in September 1994 during military service.  
Specifically, he claims that he injured his right shoulder 
during service, causing torn and bruised muscles, which led 
to muscle spasms.  For the reasons that follow, the Board 
finds that the veteran's claims of service connection for a 
neck disability and right shoulder disability are not well 
grounded.

Despite the veteran's contentions to the contrary, even 
assuming that he incurred an injury to the neck and right 
shoulder, experienced pain in service, and continues to have 
such difficulty, no competent medical evidence has been 
presented to show that he currently has torn muscles or 
muscle spasms in the neck or right shoulder, or residuals 
thereof.  His service medical records included pre-service 
private treatment records indicating that he underwent 
surgery, a Bristow-type procedure, in December 1987 for 
recurrent dislocation of the right shoulder.  His service 
medical records show that, in April 1994, he was seen for 
complaints of neck pain with stiffness, after someone had 
fallen on him, twisting his neck.  The assessment was 
cervical strain.  In September 1994, he was seen for 
complaints of neck and shoulder pain after he was lifting.  
The assessment was acute muscle spasm.  Upon follow-up 
treatment in October 1994, the assessment was upper back 
strain.  His October 1994 separation examination report shows 
that the veteran had paraspinal muscle tenderness of the 
cervical and thoracic spine, and right shoulder scar 
consistent with history of surgery.  It was also noted that 
he had had complaints of posterior neck and upper back pain 
for the previous five weeks.

Thereafter, when examined by VA in February 1996, the veteran 
reported that he injured his right shoulder and cervical 
spine in an accident during service.  He reported that he 
apparently had had some torn and bruised muscles in the right 
shoulder.  He gave a history of having had a procedure to the 
right shoulder at age 14 secondary to chronic dislocation of 
the right shoulder.  Examination of the cervical spine 
revealed forward flexion at 30 degrees and extension backward 
to 30 degrees.  Examination of the right shoulder revealed a 
well-healed scar from previous surgical procedure for chronic 
dislocation.  There was no tenderness on examination.  X-rays 
of the right shoulder revealed post-operative changes with a 
screw or screws overlying the scapula.  No fracture or 
dislocation of the proximal humerus was seen.  X-rays of the 
cervical spine revealed no fracture or subluxation.  It was 
also noted that there was straightening of the lordotic curve 
which may be positional or due to muscle spasm.  The 
diagnoses included status-post repair for chronic dislocation 
of the right shoulder, age 14 years; torn and bruised muscles 
of the right shoulder, resolved; and cervical pain, normal 
examination.

A March 1996 VA general note from the telephone care program, 
indicates that the veteran had submitted a claim for 
back/ankle problems.  It was noted that he was having 
tenderness and spasms in the back and behind the right 
shoulder.  It was further noted that the veteran had 
requested an appointment during spring break.

Despite the veteran's allegations that he has a neck and 
right shoulder disability, no competent medical evidence has 
been presented to show that he currently has any identifiable 
malady underlying his complaint of pain.  The only current 
condition is that which has been specifically identified as 
being due to the surgery undertaken to repair shoulder 
dislocations, a matter which is not at issue.  Although a 
March 1996 VA general note indicates that the veteran was 
having tenderness and spasms behind the right shoulder, there 
is no indication that this note was from a physician.  When 
examined by VA in February 1996, the veteran's torn and 
bruised muscles of the right shoulder had resolved.  
Moreover, although he was found to have cervical pain on that 
examination, the Board notes that pain is not considered a 
disability for which service connection may be granted.  See 
Sanchez-Benitez v. West, 13 Vet. App. 282 (1999) (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 considered the veteran's written statements 
regarding his neck and right shoulder problems, but no 
current diagnosis of disability 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 neck or right shoulder 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.  Consequently, absent the presentation of competent 
medical evidence showing that the veteran has a right 
shoulder disability that pre-existed service and underwent a 
worsening therein, or competent medical evidence showing 
current neck or right shoulder disability, the Board finds 
the veteran's neck and shoulder claims are not well grounded.  
Accordingly, absent such evidence, the Board finds that 
further development is not required.  

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 
well grounded, the Board finds that the RO complied with 
38 U.S.C.A. § 5103 and  1.03(a).

Right Ankle

Disability evaluations are determined by the application of a 
schedule of ratings, which is in turn based on the average 
impairment of earning capacity caused by a given disability.  
38 U.S.C.A. § 1155; 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 service-connected residuals of a right ankle 
injury with degenerative changes are currently rated as 
noncompensably disabling under Diagnostic Code 5271, which 
pertains to limitation of motion of the ankle.  A 10 percent 
evaluation is assigned for moderate limitation of motion.  
38 C.F.R. § 4.71a, Diagnostic Code 5271.  A 20 percent 
evaluation is assigned for marked limitation of motion.  Id.  
A 20 percent evaluation may also be assigned where the ankle 
is ankylosed in plantar flexion less than 30 degrees.  
38 C.F.R. § 4.71a, Diagnostic Code 5270.  (Full range of 
motion of the ankle is from 0 degrees to 20 degrees in 
dorsiflexion, and from 0 degrees to 45 degrees in plantar 
flexion.  38 C.F.R. § 4.71, Plate II (1999).)

The veteran's service medical records show that, while on 
ACDUTRA in August 1995, he twisted his right ankle while 
jogging.  The assessment was second degree right ankle sprain 
with associated right knee strain.

Thereafter, when examined by VA in February 1996, examination 
revealed that the veteran's gait was within normal limits.  
Range of motion was dorsiflexion to 10 degrees and plantar 
flexion to 45 degrees.  Ligaments appeared to be intact, even 
though the veteran stated that he had some tenderness on the 
lateral aspect of the ankle.  X-rays of the right ankle 
revealed minimal degenerative changes.  The diagnoses 
included post-status multiple sprains of the right ankle, 
with normal examination and minimal degenerative joint 
disease by x-ray.

A March 1996 VA general note from the telephone care program, 
indicates that the veteran's right ankle was swollen, tender, 
and "pops out" sometimes.

At an April 1997 VA examination, the veteran complained that 
his ankle hurts if he runs or walks too much.  The examiner 
noted that the veteran was examined under maximum disability 
and that there was no obvious swelling or deformity.  The 
veteran had 10 degrees dorsiflexion and 45 degrees plantar 
flexion, with some pain on the lateral aspect of the ankle 
with forced eversion.  The veteran could stand on his toes 
and heels, and squat.  X-rays of the right ankle were normal 
and did not show evidence of degenerative joint disease.  
Status-post multiple sprains of the right ankle without 
degenerative joint disease was diagnosed.

Considering the extent of the impairment shown in light of 
the applicable rating criteria, the Board concludes that a 
10 percent rating is warranted for residuals of a right ankle 
injury with degenerative changes under Diagnostic Code 5271.  
Limitation of dorsiflexion to 10 degrees with some pain on 
forced eversion, shown on VA examination in April 1997, when 
considered in conjunction with the problems experienced by 
the veteran on prolonged use, approximates "moderate" 
limitation of motion.  38 C.F.R. § 4.71, Plate II.  There is 
no evidence showing that dorsiflexion was worse than 
10 degrees or plantar flexion was worse than 30 degrees.  
This is significant because, as noted above, a 20 percent 
evaluation is not assignable until limitation of motion is 
"marked."  Diagnostic Code 5271.  The term "marked" is not 
defined by regulation, but a review of the entire regulatory 
scheme for rating the ankle suggests that the problems 
experienced by the veteran are not of the degree contemplated 
by a 20 percent rating.  For instance, a 20 percent rating is 
not warranted unless there is ankylosis of the subastragalar 
or tarsal joint in a poor weight-bearing position, 38 C.F.R. 
§ 4.71a, Diagnostic Code 5272, or ankylosis of the ankle in 
plantar flexion at less than 30 degrees.  Diagnostic Code 
5270.  The veteran's limitations have never been so bad as to 
even roughly equate to such debility, especially since 
problems with aching do not occur except with prolonged use, 
either walking or running.  See DeLuca v. Brown, 
8 Vet. App. 202 (1995).

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, 8 Vet. App. at 202.  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.)  
Even though the veteran has complained of pain, no evidence 
objectively confirms functional loss due to pain beyond that 
contemplated by the rating for moderate limitation of motion.  
Moreover, despite the veteran's claims of right ankle pain, 
he still had 10 degrees of dorsiflexion and 45 degrees of 
plantar flexion at his most recent examinations.  
Consequently, the Board finds no basis on which to grant a 
higher evaluation under limitation of motion criteria due to 
pain.  That the veteran has painful motion due to underlying 
pathology is allowed for and compensated by the 10 percent 
rating discussed above, but no more.

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 neck disability is denied.

Service connection for right shoulder disability is denied.

An increased (10 percent) rating for residuals of a right 
ankle injury with degenerative changes is granted, subject to 
the laws and regulations governing the award of monetary 
benefits.



		
	MARK F. HALSEY
	Member, Board of Veterans' Appeals