Citation Nr: 0007466 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-11 807 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a disorder of the lymph nodes. 2. Entitlement to an increased (compensable) evaluation for lumbar syndrome. 3. Entitlement to an increased (compensable) evaluation for gastroesophageal reflux disease. 4. Entitlement to an increased (compensable) evaluation for costochondritis. 5. Entitlement to a 10 percent evaluation based on multiple noncompensable service-connected disabilities per 38 C.F.R. § 3.324. ATTORNEY FOR THE BOARD D. Orfanoudis, Associate Counsel INTRODUCTION The veteran served on active duty from June 1993 to November 1995. This appeal arises before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) from a rating decision of July 1997 from the Jackson, Mississippi, Regional Office (RO). This matter was previously before the Board in May 1999 wherein the case was remanded for additional development. FINDINGS OF FACT 1. All of the relevant evidence necessary for an equitable disposition of the veteran's claims has been obtained. 2. There is no competent medical evidence of record which clinically confirms a current disorder of the lymph nodes. 3. The lumbar syndrome is manifested by slight limitation of motion. 4. The gastroesophageal reflux disease is manifested by complaints of regurgitation. 5. The costochondritis is manifested by complaints of pain with strenuous activity. CONCLUSIONS OF LAW 1. The claim for service connection for a disorder of the lymph nodes is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The schedular criteria for a 10 percent evaluation for lumbar syndrome have been met. 38 U.S.C.A. §§ 1155, 5107, (West 1991); 38 C.F.R. § Part 4, Diagnostic Code 5292 (1999). 3. The schedular criteria for a compensable rating evaluation for gastroesophageal reflux disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.20, Part 4, Diagnostic Codes 7399-7346 (1999). 4. The schedular criteria for a compensable rating evaluation for costochondritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.20, Part 4, Diagnostic Codes 5399-5321 (1999). 5. The claim for a 10 percent rating for multiple noncompensable ratings is moot. 38 C.F.R. § 3.324 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In May 1999, the Board remanded these issues so that the veteran could be scheduled for a VA examination. In conjunction with the Remand the RO asked the veteran if he would be willing to report for the examination. No response was received from the veteran. Where entitlement to a benefit cannot be established or confirmed without a current VA examination or re-examination and a claimant, without good cause, fails to report for such examination, an original compensation claim shall be considered on the basis of the evidence of record. 38 C.F.R. § 3.655(a) and (b) (1999). When an examination is scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for an increased rating, the claim shall be denied. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member. 38 C.F.R. § 3.655(b) (1999). The evidence does not indicate that the veteran was informed of 38 C.F.R. § 3.655(b). The RO based the current decision on a de novo review of the records. The Board will do likewise. I. . Service Connection for a Disorder of the Lymph Nodes The threshold question that must be resolved is whether the veteran has submitted a well grounded claim for entitlement to service connection for a disorder of the lymph nodes. 38 U.S.C.A. § 5107(a) (West 1991). A person who submits a claim for benefits administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. A well grounded claim is a plausible claim, one that is meritorious on its own or capable of substantiation. Robinette v. Brown, 8 Vet.App. 69, 73-74 (1995); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The truthfulness of evidence is presumed for purposes of determining if a claim is well grounded. Robinette, 8 Vet.App. at 75-76; King v. Brown, 5 Vet.App. 19, 21 (1993). The United States Court of Appeals for Veterans Claims (Court) has held that where the determinative issue involves either medical etiology or a medical diagnosis, competent medical evidence is ordinarily required to fulfill the well grounded claim requirement of section 5107(a). Edenfield v. Brown, 8 Vet.App. 384, 388 (1995). In order for a claim to be well grounded, there must be competent evidence of current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498, 506 (1995). If the claimant has not presented a well grounded claim, then the appeal fails as to that claim, and the Board is under no duty pursuant to 38 U.S.C.A. § 5107(a) to assist the claimant any further in the development of that claim. Murphy, 1 Vet.App. at 81. Compensation is payable to a veteran for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 1991). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). The veteran asserts that he has a disorder of the lymph nodes that was first manifested during his period of active service. A review of the veteran's service medical records reflects that the veteran was treated on several occasions during 1995 for sore throats and accompanying tender and swollen glands. Subsequent to service, the veteran underwent a VA examination in June 1997. The veteran reported that in February 1995, he had a bad sore throat and had some lymph node enlargement in his neck. He stated that he was told at the time that it was to be expected. He indicated that the lymph nodes have gone down since that time, but are still persistent. Physical examination revealed that the veteran had an English pea- sized node, one on the right side and two on the left side anterior cervical area. There were none on the supraclavicular area. The diagnosis was minor cervical adenopathy (does not feel pathological at the present time). The veteran's statements which describe the symptoms of a disability or an incident which occurred in service are considered competent evidence. However, a lay person is not competent to make a medical diagnosis, or to relate a given medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). The Board is satisfied that the veteran did have sore throats and tender and swollen glands during service. However, the veteran has not presented competent medical evidence nor is there competent medical evidence of record which demonstrates that he currently has a lymph node disability. The VA examiner in June 1997 did indicate that there was minor cervical adenopathy. However, the examiner also indicated it did not feel pathological at the present time. Thus, a current disability has not been clinically confirmed. To summarize, the veteran has not submitted any competent medical evidence nor is there any competent medical evidence of record, which establishes a relationship between any current disorder of the lymph nodes and his military service, to include the reported inservice tender and swollen glands. The diagnosis was minor cervical adenopathy (does not feel pathological at the present time). Accordingly, the Board finds that the claim is not well grounded and the claim must be denied. The Board acknowledges that it has decided the present appeal on a different basis than did the RO. When the Board addresses in a decision a question that has not been addressed by the RO, it must be considered whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby. See Bernard v. Brown, 4 Vet.App. 384 (1993). The Board concludes that the veteran has not been prejudiced by the decision herein. The veteran was denied by the RO. The Board considered the same law and regulations. The Board merely concludes that the veteran did not meet the initial threshold evidentiary requirements of a well-grounded claim. The result is the same. II Increased Evaluations Initially, the Board has found that the veteran's claims are well grounded pursuant to 38 U.S.C.A. § 5107 (West 1991) in that they are plausible, that is meritorious on their own or capable of substantiation. This finding is based upon the veteran's assertion that his lumbar syndrome, gastroesophageal reflux disease, and costochondritis are more disabling than reflected by their current rating. Proscelle v. Derwinski, 2 Vet. App 629 (1992). However, in the instant case the veteran is technically not seeking an increased rating, since his appeal arises from the original assignment of disability ratings. Nevertheless, when a veteran is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability, the claim continues to be well grounded. Fenderson v. West, 12 Vet. App. 119 (1999); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The Board notes that in the instant case, there is no indication that there are additional records which have not been obtained and which would be pertinent to the present claims. Thus, no further development is required in order to comply with VA's duty to assist mandated by 38 U.S.C.A. § 5107(a) or under Stegall v. West, 11 Vet. App. 268 (1998). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A.§ 1155 (West 1991). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). III Lumbar Syndrome The veteran contends that his low back disability is more disabling than reflected by his current evaluation. The veteran underwent a VA examination in May 1997. He reported that he had some pain each morning when he awakened, which usually subsided with activity. He indicated that on one occasion, he experienced some tingling down the right lower extremity. He stated that he would do daily stretching exercises, but take no medication. Physical examination of the back revealed that the veteran could stand erect without pelvic obliquity or scoliosis. He had no tenderness over the spinous processes. Range of motion was 55 degrees of flexion, 30 degrees of extension, 25 degrees of right lateral bending and 25 degrees of left lateral bending. The examiner noted that normal range of motion was 60 degrees of flexion, 25 degrees of extension, and 25 degrees of lateral bending. Straight leg raising was limited to 75 degrees bilaterally by hamstring tightness. Rotation of the hips caused no pain. There was no motor weakness or sensory deficit in the lower extremities. X-rays of the lumbar spine revealed no evidence of fracture, dislocation, narrowing of the disk space or osteophyte formation. The examiner concluded that he could find no objective evidence of organic pathology in the veteran's physical or X-ray examination to explain the symptoms. The RO has assigned a noncompensable rating evaluation for a slight lumbosacral strain pursuant to the criteria set forth in the VA's Schedule for Rating Disabilities (Schedule), 38 C.F.R. Part 4, Diagnostic Code 5295 (1999). Pursuant to this Code, the maximum 40 percent rating evaluation is warranted when the lumbosacral strain is severe with listing of the whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. A 20 percent evaluation is appropriate when the lumbosacral strain is accompanied by muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A 10 percent evaluation is warranted when the lumbosacral strain is with characteristic pain on motion. A noncompensable evaluation is assigned when the lumbosacral strain is with slight subjective symptoms only. The lumbar syndrome may also be evaluated under Diagnostic Code 5292 which provides for the evaluation of limitation of motion of the lumbar spine. When the limitation of motion of the lumbar spine is severe, a 40 percent evaluation is warranted. When the limitation of motion of the lumbar spine is moderate, a 20 percent evaluation is warranted. Where the limitation of motion of the lumbar spine is slight, a 10 percent evaluation is assigned. The United States Court of Appeals for Veterans Claims (Court) has held that when a diagnostic code provides for compensation based upon limitation of motion, that the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999) 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, 205-07 (1995). Regulations define disabilities of the musculoskeletal system as primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40 (1999). Disabilities of the joints consist of reductions in the normal excursion of movements in different planes. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45 (1999). To summarize, statements by the veteran describing the symptoms of a disability are considered to be competent evidence. Espiritu, 2 Vet.App. at 492. However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. In this regard, the VA examination have showed that the veteran was experiencing pain in the low back area and occasional tingling that decreased with activity. However, the examiner stated that he could find no objective evidence of organic pathology. The examination did show some slight limitation of motion of the lumbar spine. After reviewing the current clinical findings in conjunction with the veteran's symptoms as set forth in the DeLuca case, it is the Board's judgment that the degree of functional impairment resulting from the low back results in slight limitation of motion of the lumbar spine under Diagnostic Code 5292. Accordingly, a 10 percent evaluation is warranted pursuant to 38 C.F.R. § 4.71a (1999). In reaching this determination the Board has considered all pertinent sections of 38 C.F.R. Parts 3 and 4 as required by the Court in Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the Board finds no basis for a rating in excess of 10 percent. The current evidence does not show the presence of muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. The evidence did not support a finding of moderate or severe limitation of motion. Accordingly, a disability rating evaluation greater than 10 percent pursuant to Diagnostic Code 5292 is not warranted. In a recent decision the Court held that at the time of an initial rating, separate ratings could be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Board finds that the current 10 percent for the lumbar syndrome is the highest rating warranted during the appeal period. IV Gastroesophageal Reflux Disease The veteran contends that his gastroesophageal disorder is more disabling than reflected by his current evaluation. The veteran underwent a VA examination in June 1997. The veteran reported that he was diagnosed with gastroesophageal reflux disease in 1995 per an upper gastro-intestinal series. He reported having regurgitation on reclining, which was worse with spicy foods and orange juice. He stated that he had been treated with Zantac with some relief and that he now takes over-the-counter Pepcid. He indicated that he tries to avoid eating a late meal and that he sleeps on several pillows to elevate his head. Physical examination revealed that the veteran was 6 foot 4 inches in height and 186 pounds, with maximum weight over the past year at 190 pounds. The veteran was described as well developed and well nourished. The abdomen was without organomegaly, masses or tenderness. Bowel sounds were normoactive and there was no rebound tenderness. An upper gastro-intestinal series revealed no evidence of mass or ulcer. The duodenal bulb was spastic and demonstrated prominence of the mucosal folds thought to be a degree of duodenitis. There were also small areas of barium collection noted in the duodenal bulb, which could have represented either erosions or ulcers. The duodenal sweep and visualized portion of the small bowel were unremarkable. The diagnosis was gastroesophageal reflux disease and duodenitis with duodenal ulcers vs. erosions. The RO has assigned a noncompensable rating evaluation for gastroesophageal reflux disease as analogous to the criteria set forth in the Schedule under Diagnostic Code 7346 (1999). 38 C.F.R. § 4.20 (1999). Diagnostic Code 7346 provides for the evaluation of hiatal hernia. Pursuant to the criteria of this provision, a rating of 10 percent is warranted where the evidence shows two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted where the evidence shows persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is warranted where the evidence shows symptoms of pain, vomiting, material weight loss, and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114 (1999). As indicated hereinabove, statements by the veteran describing the symptoms of a disability are considered to be competent evidence. Espiritu, 2 Vet.App. at 492. However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. The recent VA examination showed that the primary complaint was regurgitation. There was no indication of significant weight loss, dysphagia, pyrosis, and substernal or arm or shoulder pain. Therefore, the Board finds that the criteria for entitlement to a 10 percent rating for gastroesophageal reflux disease are not met. In rendering this determination the Board has considered all pertinent sections of 38 C.F.R. Parts 3 and 4 as required by the Court in Schafrath, 1 Vet.App. at 589. However, the Board finds no basis to warrant an increased rating evaluation. The Board finds that the current zero percent rating is the highest rating warranted during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). V Costochondritis The veteran contends that his costochondritis is more disabling than reflected by his current evaluation. The veteran underwent a VA examination in June 1997. The veteran reported that while in boot camp doing push-ups, he was diagnosed with costochondritis, and that any time he does strenuous-like activity such as lifting weights, he has problems with chest pain. Cardiac examination revealed a regular rate without murmurs, rubs, or gallops. PMI was not displaced, precordium was not hyperactive, and there was no peripheral edema. There was no chest wall tenderness to palpation at the time of examination. An examination of the lungs showed no history of shortness of breath. The lungs were clear to auscultation and percussion. There were no rales, rhonchi, or wheezes. X-rays of the chest showed that the heart was normal in size. There appeared to be rather hyperlucency of the right lung as compared to the left, but this was said to be more likely artificial or due to technique. The lungs were free of infiltrates. The diagnosis was recurrent costochondritis. The RO has assigned a noncompensable rating evaluation for recurring costochondritis which is rated pursuant to the criteria set forth in the Schedule as analogous to muscle injury under Diagnostic Code 5321. 38 C.F.R. § 4.20 (1999). Diagnostic Code 5321 provides for the evaluation of injury involving Muscle Group XXI, muscles of respiration, the thoracic muscle group. The regulations pertaining to the rating of muscle injury disabilities were revised effective July 3, 1997. The veteran is entitled to evaluation of his disability under either the previously existing regulations or the newly amended regulations, whichever is determined to be more favorable in his individual case. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The revision contains no changes to Diagnostic Code 5321. When there is evidence of slight muscle injury a rating of zero percent is provided. When there is moderate muscle injury, a rating of 10 percent is provided. Diagnostic Code 5321. Slight disability of muscles is found where the muscle wound is simple, without debridement, infection or effects of laceration, and there is no significant impairment of function and no retained metallic fragments. Moderate disability is found where the wound is through and through or deep penetrating of relatively short track, and the entrance and exit scars are linear or relatively small, with moderate loss of deep fascia or muscle substance or impairment of muscle tonus, and of definite weakness or fatigue in comparative tests. 38 C.F.R. § 4.56. The June 1997 VA medical examination report established that there was no chest wall tenderness to palpation. The veteran indicated that he experienced chest pain with strenuous activity such as lifting weights, but there was no objective evidence of pain at the time of the examination. Additionally, an examination of the lungs showed no abnormality regarding respiration. As indicated hereinabove, statements by the veteran describing the symptoms of a disability are considered to be competent evidence. Espiritu, 2 Vet.App. at 492. However, these statements must be viewed in conjunction with the objective medical evidence and the pertinent rating criteria. Based on the available evidence, the Board finds that the costochondritis does not satisfy the criteria for moderate disability under Code 5321. Hence, entitlement to an increased rating is not warranted. In rendering this determination the Board has considered all pertinent sections of 38 C.F.R. Parts 3 and 4 as required by the Court in Schafrath, 1 Vet.App. at 589. However, the Board finds no basis to warrant an increased rating evaluation. The Board finds that the current zero percent rating is the highest rating warranted during the appeal period. Fenderson v. West, 12 Vet. App. 119 (1999). VI Multiple Noncompensable Service Connected Disabilities The veteran has also appealed the RO's July 1997 denial of a 10 percent rating based on his multiple noncompensable rated service connected disabilities under 38 C.F.R. § 3.324 (1999). The provisions of 38 C.F.R. § 3.324 state that where a veteran suffers from two or more separate permanent service connected disabilities, all of which are rated at zero percent, VA may apply a 10 percent combined rating for these disabilities if they are of such character as to clearly interfere with normal employability. However, the Board has determined that the veteran is entitled to a 10 percent schedular rating for his service connected lumbar syndrome. Accordingly, this issue has become moot. Sabonis v. Brown, 6 Vet. App. 426 (1994). ORDER Entitlement to service connection for a disorder of the lymph nodes is denied. Entitlement to an increased rating evaluation of 10 percent for limitation of motion of the lumbar spine is granted subject to the legal provisions governing the payment of monetary awards. Entitlement to an increased (compensable) evaluation for gastroesophageal reflux disease is denied. Entitlement to an increased (compensable) evaluation for costochondritis is denied. Entitlement to a 10 percent evaluation based on multiple noncompensable service connected disabilities per 38 C.F.R. § 3.324 is dismissed. ROBERT P. REGAN Member, Board of Veterans' Appeals