Citation Nr: 0002378 Decision Date: 01/31/00 Archive Date: 02/02/00 DOCKET NO. 97-19 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for carpal tunnel syndrome. 2. Entitlement to a rating in excess of 10 percent for bursitis of the right shoulder. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The veteran served on active duty from January to June 1965 and from November 1966 to May 1986. This case was previously before the Board of Veterans' Appeals (Board) in January 1999, at which time it was remanded for further development. Following that development, the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, confirmed and continued its denial of entitlement to service connection for carpal tunnel syndrome (CTS) and its denial of entitlement to a rating in excess of 10 percent for bursitis of the right shoulder. Thereafter, the case was returned to the Board for further appellate action. In March 1998, the veteran had a video conference before the undersigned. FINDINGS OF FACT 1. All available evidence necessary for an equitable disposition of the increased rating appeal has been obtained by the RO. 2. The claim of entitlement to service connection for CTS is not plausible. 3. The veteran's right shoulder bursitis is manifested by complaints of pain, including on range of motion, fatigue, and lack of endurance, and abduction limited to 80 degrees. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for CTS is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for a rating in excess of 10 percent for bursitis of the right shoulder have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.69, 4.71a, Diagnostic Code 5019-5203 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. CTS The veteran states that his CTS was first manifested in service by numbness in the hands and that service connection is, therefore, warranted. Service connection connotes many factors, but basically, it means that the facts, shown by the evidence, establish that a particular disease or injury resulting in disability was incurred coincident with service in the Armed Forces, or, if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may legitimately be 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) (1999). Even if the disease at issue is initially diagnosed after the veteran's discharge service, service connection may still be granted, when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Service connection may also be established when aggravation of a veteran's non-service-connected condition is proximately due to or the result of a service-connected condition. Such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet.App. 439, 448 (1995). The threshold question is whether the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim, that is, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If a claim is not well grounded, VA has no duty to assist in the development of that claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Murphy, 1 Vet. App. at 81. In order for a direct service connection claim to be well grounded, there must be competent evidence of current disability (a medical diagnosis), incurrence or aggravation of a disease or injury in service (lay or medical evidence), and a nexus between the inservice injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Where the determinative issue involves medical etiology, competent medical evidence that the claim is plausible or possible is required in order for the claim to be well grounded. This burden may not be met merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. LeShore v. Brown, 8 Vet. App. 406, 408 (1995); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The veteran's service medical records show that in July and August 1981, he was treated for a one week history of a tingling sensation in both hands, more so in the ring and little fingers on the right. The various assessments were cervical radiculitis and radiculitis. Following a neurologic consultation in August 1981, the diagnosis was bilateral ulnar neuropathy, greater on the right than the left. Following treatment at the neurology clinic in October 1981, it was noted that left ulnar neuropathy had cleared. Right ulnar neuropathy remained. During the veteran's March 1986 retirement examination, there was no evidence of CTS, and a neurologic evaluation was normal. Arthritis was noted in the right arm and shoulder. Otherwise, there were no abnormalities of the upper extremities. During a VA examination in August 1986, the veteran reported a 5 or 6 year history of an intermittent feeling of numbness in the ulnar nerve distribution and associated weakness in the left hand grip. No neurologic deficit was found, and no diagnosis was rendered in regard to the hands or wrists. Records from a military medical facility, dated in June 1995 and February 1996, and private medical records, dated in February 1996, show variously that the veteran complained of numbness in both hands with use. It reportedly started in the middle finger and progressed to the hand and forearm. The diagnoses included cervical degenerative disc disease and cervical degenerative joint disease, rule out radiculopathy. In March 1996, electromyography and nerve conduction studies suggested mild to moderate bilateral CTS. In July and August 1999, the veteran was examined by VA and a detailed review of his claims file was conducted to determine whether there was a nexus between the tingling in the veteran's hands in service and the diagnosis of CTS after service. Following the examination, the examiner confirmed the diagnosis of CTS. His review of the claims file revealed bilateral ulnar neuropathy which was probably due to elbow trapping rather than trapping at the wrists. He believed that the ulnar neuropathy was separate from the CTS. He noted that numbness of the 4th and 5th fingers in service went along with ulnar nerve dysfunction, while CTS was a median nerve dysfunction, manifested as nerve involvement of the index finger, middle finger (as reported in February 1996), and part of the ring finger, and sometimes the thumb. Finally, he did not feel that the veteran's service-connected bursitis of the right shoulder aggravated the veteran's CTS, noting that they were separate problems with separate etiologies. The veteran's complaints notwithstanding, the record contains no competent evidence of CTS in service or a nexus between his hand symptoms in service, diagnosed as ulnar neuropathy, and his hand symptoms after service, diagnosed as CTS. The only reports of such a relationship are offered by the veteran. (See, e.g., the transcript of his March 1998 video conference hearing.) While he is qualified to report symptoms that are capable of lay observation, he is not qualified to render opinions which require medical expertise. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Accordingly, the claim of entitlement to service connection for CTS is not well grounded. In arriving at this decision, the Board notes no competent evidence that the veteran's service-connected right shoulder disability aggravates the non-service-connected CTS. Although VA has no statutory duty to further assist the veteran with a claim which is not well grounded, the Court has held that VA may, nonetheless, have a duty to inform the veteran of the evidence necessary to render the claim well grounded. Robinette v. Brown, 8 Vet. App. 69 (1995). In this case, however, VA has already provided such information in evidence requests to the veteran, in the Statement of the Case (SOC), in the Supplemental Statement of the Case (SSOC), and in the Board's remand. Moreover, the veteran has not cited any outstanding evidence which could support his claim. Consequently, the Board is of the opinion that there is no need to further inform the veteran of the evidence necessary to render the claim well grounded. II. Bursitis Unlike the foregoing, the veteran's claim of entitlement to a rating in excess of 10 percent for bursitis of the right shoulder is plausible and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a); see Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (a claim of entitlement to an increased evaluation for a service-connected disability generally is a well-grounded claim). Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the diagnostic codes of the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1999). The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. 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. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service- connected disability. 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. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In this regard, where (as here) entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although the recorded history of a disability is for consideration in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). When rating the veteran's upper extremities, it is important to note whether the veteran is right-handed or left-handed; that is, it is necessary to determine which is his major upper extremity. Such a distinction is relevant to the assignment of the proper rating. 38 C.F.R. § 4.69. In this case, the record shows that the veteran is right-handed. Bursitis is rated in accordance with 38 C.F.R. § 4.71a, DC 5019. A note to that code indicates it will be rated on limitation of motion of affected parts, as degenerative arthritis. Under 38 C.F.R. § 4.71a, Diagnostic Code 5003, degenerative arthritis, established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent rating may be assigned under Diagnostic Code 5003 when there are occasional incapacitating exacerbations, with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Disabilities of the shoulder and arm are rated in accordance with 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5200-5203. Under 38 C.F.R. § 4.71a, Diagnostic Code 5201, a 20 percent rating is warranted when motion of the major arm is limited to midway between the side and shoulder level. A 30 percent rating is warranted when major arm motion is limited to midway between the side and shoulder level. A 40 percent rating is warranted when major arm motion is limited to 25 degrees from the side. The veteran's disability can be evaluated under DC 5200 if the demonstrated disability is comparable to ankylosis of the scapulohumeral articulation. Favorable major scapulohumeral ankylosis of abduction at 60 degrees (can reach mouth and head) warrants a 30 percent evaluation. The veteran's disability is not appropriately evaluated under DC 5202 or 5203, for impairment of the humerus, clavicle or scapula, manifested by dislocation, nonunion or malunion as the medical evidence does not reveal such symptomatology. The Court has considered the question of functional loss as it relates to the adequacy of assigned disability ratings. DeLuca v. Brown, 8 Vet.App. 202 (1995). In DeLuca, the Court held that 38 C.F.R. § 4.40 required consideration of factors such as lack of normal endurance, functional loss due to pain, and pain on use; specifically limitation of motion due to pain on use including during flare-ups. The Court also held that 38 C.F.R. § 4.45 required consideration of weakened movement, excess fatigability, and incoordination. Moreover, the Court stated that there must be a full description of the effects of the disability on the veteran's ordinary activity. 38 C.F.R. § 4.10. The veteran's increased rating claim was received in February 1996. The records do not contain documents pertaining to his right shoulder disability status dated within one year prior thereto. Reports of VA examinations, performed in March 1996 and August 1999, and the transcript of his March 1998 video conference hearing show that the veteran complained of right shoulder problems, manifested primarily by daily pain which became progressively worse with activity such as overhead work or prolonged driving. He denied the presence of associated stiffness, swelling, heat, redness, instability, or locking, and there was no pain to palpation, or objective evidence of weakness or incoordination. Although the August 1999 examination report shows bilateral shoulder abduction from 0 to 80 degrees, the preponderance of the evidence clearly shows that he is able to raise his arm above his shoulder. Moreover, his range of flexion (0 to 180 degrees) and internal rotation (0 to 90 degrees) and external rotation (0 to 90 degrees) are compatible with the standardized range of motion under VA criteria. 38 C.F.R. § 4.71, Plate I (1999). It was reported that although he experienced pain at 175 degrees of forward flexion, the pain did not limit his range of motion. Therefore, even if the veteran experiences fatigue and a lack of endurance during activity involving the right shoulder (and there is no objective evidence that he does) the symptomatology is more nearly comparable to the criteria for the 10 percent rating currently in effect. In arriving at this decision, the Board has considered the possibility of referring this case to the Director of the VA Compensation and Pension Service for possible approval of an extraschedular rating. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1999). In this case, the evidence shows that the veteran is not currently working; however, there is no evidence that his service-connected right shoulder disability is responsible for his lack of employment. Notably, there is no documentation of work missed by the veteran or of termination from employment, mutual or otherwise, because of his service- connected right shoulder disability. Moreover, there is no evidence that he has required frequent treatment for that disorder much less hospitalization. In essence, the record shows that the manifestations of that disability are those contemplated by the current evaluation. It must be emphasized that disability ratings are not job-specific. They represent as far as can practicably be determined the average impairment in earning capacity as a result of diseases or injuries encountered incident to military service and their residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Absent evidence to the contrary, the Board finds no reason for referral of this case to the Director of VA Compensation and Pension purposes for a rating outside the regular schedular criteria. ORDER Entitlement to service connection for CTS is denied. Entitlement to a rating in excess of 10 percent for bursitis of the right shoulder is denied. U. R. POWELL Member, Board of Veterans' Appeals