Citation Nr: 9743098 Decision Date: 09/29/97 Archive Date: 01/02/98 DOCKET NO. 95-05 686 DATE SEP 29 1997 On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES Entitlement to service connection for left shoulder bursitis. Entitlement to an increased rating for sinusitis with rhinitis and headaches, currently rated as 10 percent disabling. Entitlement to an increased rating for degenerative changes of the thoracic spine at T11-12, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. K. ErkenBrack, Counsel INTRODUCTION The veteran served on active duty from September 1971 to June 1973, from September 1973 to May 1977, and from September 1978 to March 1993. The issues of entitlement to increased ratings for sinusitis with rhinitis and headaches, and degenerative changes of the thoracic spine at T11-12 will be addressed in the remand potion of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in substance, that she has a left shoulder condition that directly resulted from in-service rigorous physical training, particularly push-ups, during active service. She indicated that the left shoulder became bothersome when she engaged in activities requiring the use of both shoulders, such as swimming. Her representative specifies that, if the claim is not considered well grounded, further development by the regional office (RO) must be accomplished, and the case must be remanded for this purpose, in compliance with Veterans Benefits Administration (VBA) Manual M21-1, Part III, Chapter 1, 1.03 (a), and Part VI, Chapter 2, 2.10(f) (1996). DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. 7104 (West 1991 & Supp. 1997), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the claim for service connection for left shoulder bursitis is not well grounded. FINDING OF FACT The claim for service connection for left shoulder bursitis is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. CONCLUSION OF LAW The claim for service connection for left shoulder bursitis is not well grounded. 38 U.S.C.A. 5107(a) (West 1991 & Supp. 1997). REASONS AND BASES FOR FINDING AND CONCLUSION Factual Background The service medical records show that, in August 1974, the veteran was involved in an automobile accident that resulted in tenderness over the left proximal trapezius. Full range of motion of the shoulder was revealed without injury or disease of the left shoulder. In January 1988, the veteran was seen for left shoulder pain after climbing that was aggravated by swimming. Range of motion was full. There was crepitus posterior and inferior to the acromion and at the acromioclavicular joint. Impingement syndrome versus bursitis of the subacromion was assessed. In February 1993, the veteran complained of left shoulder pain. Intermittent left shoulder pain when swimming was indicated. There was full range of motion of the left shoulder without point tenderness or adenopathy. Chronic, intermittent left shoulder pain was assessed. On a VA examination in May 1993, the veteran complained of the onset of left shoulder pain doing push-ups during active service with recurrence of the pain with use of the arm doing overhead work and swimming. Crepitus with full range of motion of the left shoulder was indicated. X-ray was negative for evidence of active disease or calcific synovitis. History of left shoulder bursitis with recurrent pain was diagnosed. Non-VA clinical records indicate shoulder girdle pain and strain in February 1995. Neither the right nor the left shoulder was specified. The veteran had a personal hearing before a hearing officer at the RO in May 1995. She testified that she avoided swimming, push-ups and like activity to prevent shoulder problems. Her last flare-up involved the right shoulder after using a sledgehammer. On a VA examination in September 1995, the veteran indicated no significant left shoulder problem. The examination of the left shoulder was entirely normal with normal range of motion of abduction to 180 degrees and forward flexion to 180 degrees, internal and external rotation to 90 degrees, and normal posterior movement. While the impression was bilateral shoulder pain, most likely secondary to bursitis, the symptoms were mainly in the right shoulder and she denied chronic left shoulder pain. Analysis The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence that the claim is well grounded. See 38 U.S.C.A. 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A well grounded claim is a plausible claim, meaning a claim that appears to be meritorious. See Murphy, 1 Vet.App. at 81. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." See 38 U.S.C.A. 5107(a); Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden of necessity will depend upon the issue presented by the claim. Grottveit v. Brown, 5 Vet.App. 91, 92-93 (1993). In order for a claim to be well grounded, there must be competent (medical) evidence that the veteran currently has the claimed disability. See Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). There must also be either lay or medical evidence of incurrence or aggravation of a disease or injury in service. The veteran must also submit medical evidence of a nexus between the in-service disease or injury and the current disability. See Caluza v. Brown, 7 Vet.App. 498 (1995). Where the issue is factual in nature, e.g., whether an incident or injury occurred in service, competent lay testimony, including the veteran's solitary testimony, may constitute sufficient evidence to establish a well grounded claim; however, if the determinative issue is one of medical etiology or a medical diagnosis, competent medical evidence must be submitted to make the claim well- grounded. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). If the veteran fails to submit evidence in support of a plausible claim, VA is under no duty to assist the veteran in the development of the claim. See Grottveit at 93. Left shoulder bursitis ' may be service connected if it was incurred in or aggravated by active service or resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. 1110, 1131 (West 1991). For the showing of chronic left shoulder bursitis during active service, there must have been a combination of manifestations sufficient to identify chronic left shoulder bursitis, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word, "Chronic." Continuity of symptomatology is required where the left shoulder condition noted during active service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b) (1996). The Board finds that the veteran has not submitted a well grounded claim for service connection for left shoulder bursitis. Her assertion that she has left shoulder bursitis that had its inception during active service is implausible, since, as a lay person, she is not competent to make such a medical determination. Such an assertion is unsupported by the complete medical evidence on file. In other words, the medical evidence, including the service medical records, does not show the existence of left shoulder bursitis currently. While crepitus and pain were noted during active service and on the VA examination in May 1993, there has been no subsequent clinical indication of any left shoulder dysfunction, and the previously recorded findings are not shown to have been reflective of any chronic left shoulder dysfunction. Both during the personal hearing and on the VA examination in 1995, the veteran affirmatively denied any chronic or continuous problem with left shoulder pain or any other left shoulder dysfunction. The physical findings on the VA examination were entirely normal for the left shoulder. In the absence of any current left shoulder disability, the claim for service connection therefor cannot be considered well grounded. The United States Court of Veterans Appeals (Court) has held that if the veteran fails to submit a well-grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. 5107(a); see Gilbert v. Derwinski, 1 Vet.App. 49, 55 (1990); see also Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); 38 C.F.R. 3.159(a). The veteran's representative contends that, subsequent to the Court's decisions pertaining to this issue, VA expanded its duty to assist the veteran in developing evidence to include the situation in which the veteran has not submitted a wellgrounded claim. VBA Manual M21-1, Part III, Chapter 1, 1.03(a), and Part VI, Chapter 2, 2.10(f) (1996). The veteran's representative further contends that the M21-1 provisions indicate that the claim must be fully developed prior to determining whether the claim is well grounded, and that this requirement is binding on the Board. The Board, however, is required to follow the precedent opinions of the Court. 38 U.S.C.A. 7269; see also Tobler v. Derwinski, 2 Vet.App. 8, 14 (1991). Subsequent to the revisions to the M21-1 manual, in Meyer v. Brown, 9 Vet.App. 425 (1996), the Court held that the Board is not required to remand a claim for additional development, in accordance with 38 C.F.R. 19.9, prior to determining that a claim is not well-grounded. The Board is not bound by an administrative issuance that is in conflict with binding judicial decisions, and the Court's holdings on the issue of VA's duty to assist in connection with the well-grounded claim determination are quite clear. See Bernard v. Brown, 4 Vet.App. 384, 39 (1993); 38 C.F.R. 19.5. The Board has determined, therefore, that, in the absence of a well-grounded claim, VA has no duty to assist the veteran in developing his case. Although the Board considered and denied the appellant's claim on a ground different from that of the RO, which denied the claim on the merits, the appellant has not been prejudiced by the decision. This is because in assuming that the claim was well grounded, the RO accorded the appellant greater consideration than her claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the implausibility of the appellant's claim and the failure to meet her initial burden in the adjudication process, the Board concludes that she has not been prejudiced by the decision to deny her appeal for entitlement to service connection for left shoulder bursitis. ORDER The veteran not having submitted a well grounded claim of entitlement to service connection for left shoulder bursitis, the appeal to this extent is denied. REMAND The veteran's sinusitis with rhinitis and headaches was adjudicated under the old criteria contained in 38 C.F.R. Part 4, Diagnostic Code 6510, in effect prior to October 7, 1996. Effective on that date, the schedular criteria under this Diagnostic Code were changed. In Karnas v. Derwinski, 1 Vet.App. 308, 311 (1991), where a law or regulation changes after the claim has been filed or reopened before administrative or judicial process has been concluded, the United States Court of Veterans Appeals decided that the version most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. The exceptions for applying the most favorable version do not obtain in this case. The RO must determine the most favorable version and apply it to the veteran's case prior to further appellate review. The most recent VA examination of record, in September 1955, shows that the veteran was experiencing and being treated for an active sinus infection. The current symptomatology of sinusitis should be ascertained because the most recent findings of record indicate that such symptomatology was in a state of flux. During and since active service pain has been a persistent component of the veteran's thoracic spine disability. Nevertheless, the RO has not fully evaluated the functional impairment due to pain from degenerative changes of the thoracic spine. This disability is rated under Code 5291, based solely on limitation of motion. Moreover, the Court has held that, when a diagnostic code provides for compensation based solely upon limitation of motion, the provisions of 38 C.F.R. 4.40 and 4.45 (1996) must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet.App. 202, 206 (1995). In pertinent part, 3 8 C.F.R. 4.40 provides: Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with nominal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. 4.45 provides: As regards the Joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than nominal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. For the purpose of rating disability from arthritis, the shoulder, elbow, wrist, hip, knee, and ankle are considered major joints; multiple involvements of the interphalangeal, metacarpal and carpal joints of the upper extremities, the interphalangeal, metatarsal and tarsal joints of the lower extremities, the cervical vertebrae, the dorsal vertebrae, and the lumbar vertebrae, are considered groups of minor joints, ratable on a parity with major joints. The lumbosacral articulation and both sacroiliac joints are considered to be a group of minor joints, ratable on disturbance of lumbar spine functions. In light of the above discussion, it is opinion of the Board that contemporaneous and thorough VA examinations would assist the Board in clarifying the nature of the appellant's service connected sinusitis with rhinitis and headaches, and thoracic spine disability and would be instructive with regard to the appropriate disposition of the issues submitted for appellate consideration. Littke v. Derwinski, 1 Vet.App. 90 (1990). Hence, the case is remanded for the following actions: 1. The RO should contact the veteran and request that she identify all sources of treatment for sinusitis with rhinitis and headaches, since September 1995, and degenerative changes of the thoracic spine, since March 1995. After obtaining any necessary authorization, the RO should request and associate with the claims file copies of the veteran's complete treatment reports from all sources identified. 2. The RO should then conduct a VA rating examination to evaluate the current severity of sinusitis with rhinitis and headaches. Any indicated tests should be administered. The claims file, a copy of the old and new criteria for rating respiratory disabilities, and a separate copy of this remand must be made available to and reviewed by the examiner pursuant to conduction and completion of the examination. Any opinions expressed as to the severity of sinusitis with rhinitis and headaches must be accompanied by a complete rationale. 3. The RO should arrange for a VA examination of the veteran by an orthopedic surgeon in order to determine the nature and severity of degenerative changes of the thoracic spine at T11-12. Any indicated testing should be conducted. The claims file and a separate copy of this remand must be made available to and reviewed by the examiner prior to conduction and completion of the examination. The examiner should record pertinent medical complaints, symptoms, and clinical findings, including specifically active and passive range of motion, and comment on the functional limitations, if any, caused by the appellant's degenerative changes of the thoracic spine in light of the provisions of 38 C.F.R. 4.40, 4.45. It is requested that the examiners provide explicit responses to the following questions: (a) Do degenerative changes of the thoracic spine involve only the joint structure, or do they also involve the muscles and nerves? (b) Do degenerative changes of the thoracic spine cause weakened movement, excess fatigability, and incoordination, and if so, can the examiner comment on the severity of these manifestations on the ability of the appellant to perform average employment in a civil occupation? If the severity of these manifestations can not be quantified, the examiners should so indicate. (c) With respect to the subjective complaints of pain, the examiners are requested to specifically comment on whether pain is visibly manifested on movement of the joints, the presence and degree of, or absence of, muscle atrophy attributable to degenerative changes of the thoracic spine, the presence or absence of changes in condition of the skin indicative of disuse due to degenerative changes of the thoracic spine, or the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to degenerative changes of the thoracic spine. (d) The examiners are also requested to comment upon whether or not there are any other medical or other problems that have an impact on the functional capacity affected by the degenerative changes of the thoracic spine, and if such overlap exists, the degree to which the nonservice connected problem creates functional impairment that may be dissociated from the impairment caused by the degenerative changes of the thoracic spine. If the functional impairment created by the nonservice connected problem can not be dissociated, the examiners should so indicate. Any opinions expressed must be accompanied by a complete rationale. 4. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination reports and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if they are not, the RO should implement corrective procedures. 5. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issues of entitlement to an increased evaluation for degenerative changes of the thoracic spine with consideration of whether the criteria under 38 C.F.R. 4.40, 4.45 apply, and if so, whether they provide a basis for any change in the award of compensation benefits. The RO should readjudicate the issue of entitlement to an increased evaluation for sinusitis with rhinitis and headaches with consideration of which version of 38 C.F.R. Part 4, Code 6510, before or after October 7, 1996, is more favorable, and those criteria should be utilized in the rating decision, pursuant to Karnas, cited above. If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to and final outcome warranted. No action is required of the veteran until she is notified by the RO. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 5101 (West Supp. 1997) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the Ros to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. RONALD R. BOSCH Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. 7266 (West 1991 & Supp. 1997), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, 402, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. Appellate,rights do not attach to the issues addressed in the remand portion of the Board's decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. 20.1100(b) (1997).