BVA9505789 DOCKET NO. 92-02 758 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for neck disability, to include on a secondary basis. 2. Entitlement to service connection for circulatory disability of the lower extremities, to include on a secondary basis. 3. Entitlement to service connection for spina bifida occulta of the lumbar spine, with associated spondylolysis and spondylolisthesis. 4. Entitlement to an increased rating for bilateral pes cavus, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD James L. March, Associate Counsel INTRODUCTION The veteran had active service from June 16, 1988, to August 28, 1990. This appeal comes to the Board of Veterans' Appeals (Board) from a November 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In May 1993, the Board remanded the case for further development. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he has neck and circulatory disabilities which he attributes to his service-connected lumbosacral strain and bilateral pes cavus. He maintains, in essence, that spina bifida occulta of the lumbar spine, with associated spondylolysis and spondylolisthesis were aggravated by service. He contends that a higher disability evaluation is warranted for his bilateral pes cavus. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), 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 preponderance of the evidence is against the claim for service connection for spina bifida occulta with spondylolysis and spondylolisthesis and against the claim of entitlement to an increased disability rating for bilateral pes cavus. The Board also finds that the veteran's claims of entitlement to service connection for neck and circulatory disabilities, to include on a secondary basis, are not well grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The claims for service connection for neck and circulatory disabilities, to include on a secondary basis, are not plausible. 3. Spina bifida occulta with spondylolysis and spondylolisthesis existed prior to service. 4. Spina bifida occulta with spondylolysis and spondylolisthesis underwent no pathological increase in severity beyond natural progression during the veteran's period of active duty. 5. The veteran's bilateral pes cavus is manifested by definite metatarsal tenderness, and atypical clawing of the toes, with some soft calluses. 6. No unusual or exceptional disability factors have been presented. CONCLUSIONS OF LAW 1. The claims of entitlement to service connection for neck and circulatory disabilities, to include on a secondary basis, are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The preexisting spina bifida occulta with spondylolysis and spondylolisthesis was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1994). 3. The criteria for a disability evaluation higher than 10 percent for bilateral pes cavus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.10, Part 4 Diagnostic Code 5278 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Neck and circulatory disabilities Initially, one who submits a claim for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Veterans Appeals (Court) has defined a well-grounded claim as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In addition, in order for a claim to be considered plausible, and therefore well grounded, there must be evidence of both a current disability and evidence of relationship between that disability and an injury or disease incurred in service or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1994). 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) (1994). For secondary service connection to be granted, it must be shown that the disability for which the claim is made is proximately due to or the result of a service- connected disease or injury. 38 C.F.R. § 3.310(a) (1994). Here, the veteran claimed that he had neck and circulatory disabilities which he related to his service connected back disability and pes cavus. The Board notes that there is no medical evidence of neck or circulatory disability. Regarding the alleged circulatory disability, the veteran alleged that he had cold feet and numb legs which he contended were due to poor circulation. However, a June 1993 VA examination revealed no evidence of peripheral vascular disease of any sort. In addition, a March 1993 X-ray report of the cervical spine were normal. The veteran's lay assertions that neck and circulatory disability exist and are attributable to his service-connected disabilities are not supported by any clinical data and, standing alone, are not of significant probative value, as he is not shown to have medical expertise in the pertinent fields. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992) and Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Without the requisite competent medical evidence suggesting the presence of neck and circulatory disabilities and a relationship between those alleged disabilities and an injury or disease incurred in service or some other manifestation of the disability during service, the veteran has not met his burden of submitting evidence that his claims of entitlement to service connection for neck and circulatory disabilities are well grounded. Grottveit, supra; Rabideau, supra. Notwithstanding the apparent contradiction between the Board's previously having remanded this case to develop these issues, thus having treated the veteran's claims as well grounded, and the findings set forth above that the veteran's claims for service connection for neck and circulatory disabilities are not well grounded, the Board points out that subsequent to this remand, the Court provided the Board with further guidance regarding claims that are well grounded and those that are not. See Grivois v. Brown, 6 Vet.App. 136 (1994) and Grottveit, supra. In Grivois, the Court reiterated that VA has no statutory duty to assist a veteran absent evidence of a well-grounded claim, and cautioned VA against volunteering assistance to establish well- groundedness. Id. at 140. As indicated above, since the law requires that a veteran submit competent medical evidence establishing that his claims are well grounded, Grottveit at 93, and no such evidence has been presented to the Board, the veteran's claims are not ones that are well grounded. Although the Board has considered and denied this appeal on a ground different from that of the RO, that is, whether the veteran's claim is well grounded rather than whether he is entitled to prevail on the merits, the veteran has not been prejudiced by our decision. In assuming that the claim was well grounded, the RO accorded the veteran greater consideration than his claim warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). To remand this case to the RO for consideration of the issue of whether the appellant's claim is well grounded would be pointless, and in light of the law cited above, would not result in a determination favorable to the appellant. VA O.G.C. Prec. Op. 16-92, 57 Fed. Reg. 49,747 (1992). II. Spina bifida occulta with spondylolysis and spondylolisthesis The Board finds that the veteran's claim for service connection for spina bifida occulta with spondylolysis and spondylolisthesis is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant evidence has been obtained regarding the veteran's claim, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). As noted above, service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). A pre-existing injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Every veteran shall be taken to have been in sound condition when examined, accepted and enrolled for service, except as to defects noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable evidence or medical judgment is such as to warrant a finding that the disease or injury existed before acceptance and enrollment, and was not aggravated by such service. 38 U.S.C.A. § 1111. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Medical records from Saint Joseph Hospital dated in September 1986 are associated with the veteran's service medical records. These medical records indicate that the veteran was hospitalized following thoracic spine trauma, which was incurred in a high school football game. Magnetic Resonance Imaging (MRI) was negative for any thoracic spine abnormalities; however, MRI of the lumbar spine revealed spondylolysis and spondylolisthesis at L5-S1. The veteran had six vertebrae with lumbar characteristics, with the lower-most demonstrating a spina bifida occulta. There was also minimal dextro-concave lumbar scoliosis. The records from Saint Joseph Hospital were received by the service department in July 1987, at the time of the veteran's entrance examination. Thus, such evidences rebuts the presumption of soundness upon entry onto active duty. The service medical records reveal that in July 1989, the veteran injured his back during heavy lifting. He was treated for low back muscle strain. Through the remainder of his service he had occasional episodes of low back pain after doing strenuous activities. He carried a diagnosis of mechanical low back pain. In August 1991, the RO granted service connection for lumbosacral strain, which is currently rated as 40 percent disabling. Subsequent to service, the veteran received treatment at VA medical facilities for complaints of low back pain. A VA examination was conducted in November 1991. X-rays revealed that the veteran had six lumbar vertebrae. There was a spina bifida occulta with spondylolysis and spondylolisthesis at L6, and narrowing of the L6-S1 disc space. The examiner noted that these conditions were congenital and developmental in nature. After discussing the veteran's low back complaints in service, the examiner diagnosed chronic low back pain secondary to lumbosacral strain and spinal spondylolysis with grade I spondylolisthesis of L5-S1. The veteran has continued to receive treatment and medication for low back pain from the VA outpatient center. In June 1993, a second VA examination was conducted. The examiner reviewed the veteran's history and diagnosed chronic low back strain with mild residuals. Also diagnosed was grade I spondylolisthesis which the examiner attributed to congenital factors. Finally, in September 1994, a third VA examination was conducted. The examiner noted the diagnosis of spondylolisthesis prior to service and discussed the back injury during service. The diagnoses were grade I spondylolisthesis at L5 and recurrent low back discomfort. The examiner noted that the symptoms were consistent with chronic strain. He concluded that the spondylolisthesis existed prior to service, but he stated that he assumed that the symptoms were "potentially aggravated" by the injury in service. Hearings were held at the RO in April 1991 and December 1993. The Board notes that the veteran discussed his back disability, but never specifically addressed the issue of service connection for spina bifida occulta with spondylolysis and spondylolisthesis. The Board notes that the spina bifida occulta with spondylolysis and spondylolisthesis clearly existed prior to the veteran's period of service. The pre-service medical records attest to this finding. The Board further finds that the pre-service conditions were not aggravated by service. Except for the assumption made by the most recent VA examiner, all of the medical evidence of record indicates that the low back injury in service, for which the veteran is being compensated, was a distinct injury unrelated to the pre-existing conditions. The medical evidence, X-ray and otherwise, establishes that the spina bifida occulta, spondylolysis or spondylolisthesis were not aggravated by the veteran's service. The comment by the VA examiner concerning potential aggravation of symptoms during service is speculative and entitled to no significant probative value. Thus, the Board concludes that the weight of the evidence is clearly against this portion of the veteran's appeal. III. Pes cavus The Board finds that the veteran's claim for an increased disability rating for bilateral pes cavus is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). As provided above, when a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all available relevant evidence has been obtained regarding the claim, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 (1993), and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran's bilateral pes cavus. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, which would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. In November 1990, the RO granted service connection for bilateral pes cavus and assigned a 10 percent disability rating. The service medical records indicate that the veteran was first seen for foot disability in August 1989. It was noted that he had had trouble with his shoe gear. In September 1989, he underwent surgery on his right foot to correct claw toe of the second and third toes, and hammertoe of the 4th and 5th toes. His recovery went well, and in December 1989, he had corrective surgery on the left foot for the same problem. Following the second surgery, the veteran complained of pain of the plantar surface of both feet. The diagnosis was metatarsalgia, secondary to pes cavus. He complained of bilateral foot pain throughout the remainder of service. VA outpatient medical records dated from November 1990 to May 1991 indicate that the veteran complained that he had increased pain in the balls of both feet. X-rays revealed satisfactory healing at the surgical sites in both feet. The veteran rated the pain in the right foot as an eight or nine on a scale of one to ten. A VA examination was conducted in November 1991. The veteran continued to complain of bilateral foot pain. X-rays showed deformity at the distal ends of the proximal phalanges of the second, third, fourth, and fifth toes, bilaterally, suggesting previous osteotomies. The remainder of the bony structures were unremarkable. The examiner attributed the pain to the foot surgery in service. A VA examination conducted in June 1993 revealed mild residual hammer toe problems of the second to fifth toes of both feet, but there was no restricted motion, pain on manipulation, swelling, or deformities. The diagnosis was postoperative hammer toes with good surgical results. Hearings were held at the RO in April 1991 and December 1993. The veteran testified that the balls of his feet were painful and that he had calluses on his feet. He alleged that he could only walk a fixed distance before resting his feet. He complained that his feet were cold and numb, which, as noted above, he attributed to a circulatory disorder. A VA examination was also conducted in September 1994. Again, the veteran complained of calluses and pain in the balls of both feet, as well as a subjective cold feeling in the feet. His posture was normal and his gait was satisfactory. He was able to rise on the heels and toes of both feet, but with some metatarsal discomfort on the left. On the right foot, there was a soft metatarsal callus, as well as a callus on the plantar aspect of the great toe. Similar calluses were present on the left foot. When standing, the arches were elevated, consistent with the diagnosis of mild cavus deformity. The extensor tendons were tight in both feet, allowing the toes to assume a position of some extension at the metatarso-phalangeal joints. The second through fifth toes assumed a position of atypical claw foot, bilaterally, but they were not rigid. The diagnosis was status post decompressive procedures for claw toe deformities bilaterally; cavus deformities, bilaterally; and callosities of the metatarsal areas and plantar aspect of each great toe. The examiner noted that the veteran appeared to get around well, as far as his feet were concerned. He noted that further surgical intervention could allow the toes to drop more normally. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1994). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. The veteran's service-connected bilateral pes cavus has been rated as 10 percent disabling under Diagnostic Code 5278. That code provides that bilateral acquired clawfoot (pes cavus) manifested by dorsiflexion of the great toes, some limitation of dorsiflexion at the ankles, and definite tenderness under the metatarsal heads warrants a 10 percent evaluation. A 30 percent evaluation requires that all toes tend toward dorsiflexion, that dorsiflexion at the ankles be limited to a right angle, and that there be shortening of the plantar fasciae and marked tenderness under the metatarsal heads. A 50 percent evaluation requires marked contraction of the plantar fasciae with dropped forefeet, hammering of all toes, very painful callosities, and marked varus deformities. 38 C.F.R. Part 4, Code 5278. The medical evidence reveals definite metatarsal tenderness, and atypical clawing of the toes, with some soft calluses. There is no evidence of shortening of the plantar fasciae, limited dorsiflexion, or marked tenderness. Indeed, the VA examinations indicate that the veteran appears to get around well, as far as his feet are concerned. The June 1993 VA examination revealed no restricted motion. Thus, the Board finds that the criteria for a 30 percent disability rating have not been met, and the preponderance of the evidence is against the claim for an increased rating for bilateral pes cavus. The Board has given due consideration to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the Board finds that the evidence discussed above does not suggest that the veteran's service-connected disorder presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The disability in question has not recently required frequent hospitalization, nor has it caused marked interference with employment. ORDER Evidence of well-grounded claims not having been submitted, the claims for service connection for neck and circulatory disabilities are dismissed. Service connection for spina bifida occulta with spondylolysis and spondylolisthesis is denied. Entitlement to a disability evaluation higher than 10 percent for bilateral pes cavus is denied. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a (CONTINUED ON NEXT PAGE) determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.