BVA9506086 DOCKET NO. 93-11 873 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for left arm arthritis. 2. Entitlement to service connection for right elbow ankylosis. 3. Entitlement to an increased rating for service-connected residuals of old nonunion fracture, right carpal navicular, currently rated 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Deborah W. Singleton, Counsel INTRODUCTION The veteran served on active duty from June 1961 to June 1964, and from July 1964 to July 1970. This appeal arises from a rating decision in October 1992 by the Department of Veterans Affairs ("VA") Regional Office ("RO") in St. Petersburg, Florida. In a notice of disagreement dated in April 1992, the veteran raised the issues of service connection for arthritis of the right arm and right shoulder, claimed as secondary to his service-connected residuals of fracture of the right carpal navicular. These issues were considered by the RO in its rating decision of October 1992. A review of the record, however, does not reveal that veteran has been informed of that rating action, or of his right to appeal, with respect to these issues. Therefore, this matter is referred to the attention of the RO for further consideration. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that he has right elbow ankylosis and that a physician has indicated that this condition was caused by his residuals of an old nonunion fracture of the right carpal navicular. He maintains that he suffers from a left arm disability as a consequence of having to compensate for a weak right arm. Thus, he contends that he should be accorded secondary service connection for these two conditions. In addition, he avers that he experiences pain and a burning sensation in his right arm and hand, and that he is losing the ability to grip while using the right thumb and hand. Therefore, the veteran contends that he is entitled to an increased rating for his residuals of an old nonunion fracture of the right carpal navicular. DECISIONS 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 claims of service connection for left arm arthritis, and right elbow ankylosis are not well grounded. It is also the decision of the Board that the preponderance of the evidence is against the claim for an increased rating for residuals of an old nonunion fracture of the right carpal navicular. FINDINGS OF FACT 1. The claim of entitlement to service connection for left arm arthritis, is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. The claim of entitlement to service connection for right elbow ankylosis is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 3. The veteran is right handed. 4. The residuals of an old nonunion fracture of the right carpal navicular are manifested by limitation of motion of the right wrist and elbow, a decreased hand grip due to a lack of thumb pressure, and x-ray evidence of traumatic arthritis of the right wrist and elbow. CONCLUSIONS OF LAW 1. The claim of service connection for left arm arthritis, is not well grounded. 38 U.S.C.A. § 5107 (a) (West 1991). 2. The claim of service connection for right elbow ankylosis is not well grounded. 38 U.S.C.A. § 5107 (a) (West 1991). 3. The criteria for an evaluation in excess of 30 percent for the residuals of an old nonunion fracture of the right carpal navicular have not been meet. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.40, Diagnostic Codes 5010, 5212 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran has established entitlement to service connection for residuals of an old nonunion fracture of the right carpal navicular, currently evaluated as 30 percent disabling. The service medical records reflect that the veteran is right handed, and that at his June 1961 enlistment examination a 1½ scar was present at the left wrist. Service medical records pertaining to his first period of active duty reflect no complaint, treatment or diagnosis of a right elbow disorder or a left arm disability. On separation examination in April 1964, the veteran reported no pertinent complaints, and his upper extremities were evaluated as normal. In August 1969, during his second period of service, the veteran was diagnosed as having a nonunion fracture of the right carpal navicular, with aseptic necrosis of the proximal pole, as the result of an injury he sustained to the right wrist three years prior thereto. Surgery was performed and the proximal pole of the right carpal navicular was excised. In May 1970, the veteran was examined for separation and, at that time, he reported a history of broken bones, and arthritis or rheumatism. He denied bone, joint or other deformity, as well as a painful or trick shoulder or elbow. The physician's summary noted that the veteran had limited motion of the right wrist which was due to an old injury, but no sequelae was recorded. Upper extremity evaluation revealed otherwise normal findings. In a medical statement dated in July 1970, before he was actually discharged from service, but after his separation examination, the veteran indicated that his medical condition had changed since he was lasted examined, and he reported that he had partial paralysis of the right arm due the after effects of surgery. In September 1971, the veteran was accorded a VA orthopedic examination. Physical examination revealed slight limitation of motion, as well as minimal right wrist functional impairment. X- ray of the right wrist showed considerable residual deformity of the scaphoid bone. No neurological findings were reported. The diagnosis was a "fracture, right carpal navicula, aseptic necrosis, nonunion, excised, mildly symptomatic." Private clinical reports dated in January and February 1975 were received showing continuing evaluation of the veteran's service- connected right wrist disability. A January 1975 roentgenographic examination revealed advanced degenerative arthritic changes of the remaining portion of the right navicular bone, and of the styloid process of the radius. S.S. Yip, M.D., reported in February 1975 that the veteran had complaints of radiating pain in the right arm, a slight deformity in fingers of the right hand, and a "claw-like" appearance was noted. VA examination dated in March 1975, reflected no right wrist deformity. There was no crepitus on motion of the right wrist. Range of motion studies disclosed flexion to 70 degrees, hyperextension to 30 degrees, ulnar deviation to 20 degrees, and radial deviation to 5 degrees. Right hand grasping was judged to definitely be weak. Reflexes in the right forearm were normal, and no sensory deficit was recorded. All hand functions, including the ulnar, radial and medial nerves, were reported as normal. X-ray studies revealed a deformity of the right navicular with degenerative arthritic changes involving the radial joint. The diagnosis was right navicular fracture, status post removal of a proximal fragment of the right navicular bone, with residual traumatic arthritis, and moderate right wrist impairment. The veteran claimed an increased evaluation in April 1991. VA and private clinical records dated between February and July 1991, were procured and collectively showed that the veteran had pain in the right wrist, forearm and elbow, and that he had decreased extension in the right elbow. Also, the records contained March 1991 x-ray evidence showing deformity of the right carpal navicular and post traumatic arthritis of the right wrist. The x-ray evidence revealed no evidence of a recent fracture or degenerative changes involving the right elbow. In July 1991 elective surgery for the right wrist was suggested due to aseptic necrosis of the navicular bone. This surgery was declined by the veteran, and he was prescribed a brace which was issued in August 1991. The veteran was noted to be employed as a manual laborer. VA outpatient examinations conducted between September and December 1991, reflect that the veteran was seen complaining of pain in the right wrist and elbow. The veteran was reported to have limited of motion of the right elbow in September 1991, noting extension to 33 degrees, supination to 15 degrees, and pronation to 14 degrees. Physical examination dated in November 1991 noted generalized tenderness, pain and weakness in the right wrist and elbow. The brace was judged to be of great benefit. A diagnosis of nonunion fracture of the right navicular with degenerative arthritic changes was recorded. In December 1991, it was reported that the veteran was not able to work as a manual laborer. In March 1992, the veteran was seen in VA consultation where upon physical examination the veteran complained of pain in the right wrist and decreased motion in the right elbow. Extension of the right elbow was to 30 degrees, and flexion was to 140 degrees, with no evidence of pain over the radial head. A March 1992 arthrogram and computed tomography of the right elbow were interpreted as showing no significant interarticular pathology which could explain the veteran's limited extension of the right elbow. No significant arthritic changes, hypertrophic bone, fractures or loose bodies were seen. Subsequently in that same month, the veteran was reported to have complaints of aching and tenderness in the left wrist and distal radius as the result of lifting a heavy mower into the trunk of a car five days previously. Physical examination of the left wrist and arm revealed a full range of motion, and some tenderness to palpation over the dorsal of the hand. The impression was questionable tendonitis which was reported as resolved in April 1992. A VA outpatient clinical record dated in May 1992, noted that the veteran's right elbow lacked 30 degrees of full extension, and, in June 1992, a VA examiner reported that the veteran's right elbow difficulty was casually related to his right wrist pathology involving the right navicular fracture. Also, it was noted during this period that the veteran was not able to perform work using his right hand/arm. In September 1992, the veteran was accorded a special VA orthopedic examination. The veteran was observed wearing a wrist support which extended the entire length of his right forearm. He complained of continued limited motion, pain and weakness of the right wrist and elbow which worsened with use. The ranges of motion of the right wrist were extension to 40 degrees, flexion to 20 degrees, ulnar deviation to 19 degrees, and radial deviation to zero. Motion of the right elbow was at 35 degrees by 145 degrees, and pronation and supination were normal. Objective pain to palpation involving the radial capitellum and humoral-ulnar joints, as well as in the entire wrist joint, was noted; but no swelling was detected. The entire right wrist joint was objectively tender to palpation. Right hand grip strength had decreased approximately 30 to 40 percent due to a lack of thumb pressure in opposition. There was good hook motion. Finger motion was normal and of good strength, except for the thumb which was weak in flexion and painful to full extension. Films of the right elbow and wrist were interpreted as showing evidence of arthritic involvement of the right elbow and deformity of the right navicular with ensuing arthritic changes of its para articulations at the wrist joint. The examiner noted a March 1992 arthrogram and reported that it showed essentially normal findings. The examiner surmised that the changes seen by x-ray could well account for blockage prohibiting full motion of the right elbow, but reported that such a conclusion was not shown by arthrogram. The examiner expressed an opinion that there was a causal relationship between the pathology of the right wrist and the right elbow joints. The diagnosis was traumatic arthritis of the right wrist and elbow joints, secondary to a fracture of the right carpal navicular. Analysis I. Entitlement to Service Connection For Left Arm Arthritis, and Right Elbow Ankylosis The Board has determined that the veteran's claims of service connection for left arm arthritis, and right elbow ankylosis are not "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran has failed to meet his initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims are plausible or capable of substantiation. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). As such, there is no duty to assist the veteran in developing his case, and his claims must be dismissed. Tirpak; Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular injury or disease resulting in current disability was incurred or aggravated coincident with service in the Armed Forces. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1994). In addition, arthritis may be presumed to have been incurred during service if it becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. § 3.307, 3.309 (1994). Service connection may also be granted for a "[d]isability which is proximately due to or the result of a service-connected disease or injury . . . ." 38 C.F.R. § 3.310(a) (1994); Harder v. Brown, 5 Vet.App. 183, 187- 189 (1993) (interpreting 38 C.F.R. § 3.310(a)). In this case, the Board observes that save the left wrist scar noted at enlistment in June 1961, the service medical records are completely negative for any complaint, finding or diagnosis of a left arm disability, to include arthritis, or a right elbow disorder. Crucially, the record does not disclose medical evidence of a current diagnosis of arthritis of the left arm or right elbow ankylosis; the veteran's unsubstantiated allegations that he currently suffers from such disorders are not competent evidence as to the issue of a medical diagnosis. See Boeck v. Brown, 6 Vet.App. 14, 17 (1993); Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). While the veteran has also asserted that his alleged disorders, i.e., arthritis of left arm and right elbow ankylosis, were caused by his service-connected right wrist disability, such lay assertions are equally "insufficient to support a claim of medical causation." Jones v. Brown, 7 Vet.App. 134, 137 (1994) (citing Grottveit, 5 Vet. App. at 93). To be well grounded, a claim must be supported by evidence, not merely allegations. Tirpak. In the absence of a the left arm disorder, to include arthritis, as well as right elbow ankylosis, during the veteran's periods of active duty, competent medical evidence linking such disorders to service, or to his service-connected right wrist disability is required to find these claims plausible. Jones, 7 Vet.App. at 137; Grottveit; Espiritu; Murphy, 1 Vet.App. at 81. Here, the veteran has failed to produce such evidence. Therefore, the claims must be dismissed as not well grounded. In reaching this decision the Board acknowledges that the veteran has indicated that a physician has told him that his alleged right elbow ankylosis is the direct result of his service- connected right wrist disability. The veteran's account, however, "filtered as it [is] through a layman's sensibilities, of what a doctor purportedly said is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, No 93-985, slip op. at 12 (U.S. Vet. App. Sept. 12, 1994) recon. gr. on other grnds., Robinette v. Brown, No. 93-985 (U.S. Vet. App. Oct. 21, 1994). Hence, this statement cannot serve as a predicate for finding a well grounded claim. Finally, although the Board has considered and decided this appeal on a ground different from that of the RO, which denied the claims on the merits, the veteran has not been prejudiced. This is because in assuming that the claims were well grounded, the RO accorded the veteran greater consideration than his claim in fact warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). To remand this case to the RO would be pointless and, in light of the law cited above, would not result in a determination favorable to him. VA O.G.C. Prec. Op. 16-92, 57 Fed. Reg. 49,747 (1992). II. Entitlement to an Increased Rating for Residuals of Old Nonunion Fracture of the Right Carpal Navicular, Currently Rated 30 Percent Disabling Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities which is based on average impairment of earning capacity. Separate diagnostic codes identify various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, Part 4 (1994). Specifically, disabilities of the wrist, elbow and forearm are rated in accordance with 38 C.F.R. § 4.71a, Diagnostic Codes 5205 through 5215 (1994). The range of motion of these joints is provided at 38 C.F.R. § 4.70 Plate I (1994). Nonunion of the radius in the lower half of the major upper extremity, with false movement, without loss of bone substance or deformity warrants a 30 percent evaluation. A 40 percent evaluation requires nonunion of the radius in lower half of the major upper extremity, with false movement, with loss of bone substance (1 inch (2.5 cms.) or more) and marked deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5212. Limitation of flexion of the major forearm to 70 degrees warrants a 30 percent evaluation. A 40 percent rating requires that flexion of the major arm be limited to 55 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5206 (1994). Limitation of extension of the major forearm to 90 degrees warrants a 30 percent rating. A 40 percent rating requires that extension of the major arm be limited to 100 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5207 (1994). Favorable ankylosis of the wrist in 20 to 30 degrees of dorsiflexion warrants a 30 percent evaluation. Ankylosis at any other position except favorable warrants a 40 percent evaluation. 39 C.F.R. § 4.71a, Diagnostic Code 5214 (1994). In this case, the Board observes that while the veteran underwent a surgical removal of the proximal portion of his right navicular bone, there is no objective evidence of false movement or marked deformity. Hence, an increased evaluation under diagnostic code 5212 is not warranted. Similarly, an increased evaluation is not warranted under diagnostic code 5214 in light of the fact that the veteran clinically shows evidence of right wrist motion, and thus there is no evidence of right wrist ankylosis. Turning to the consideration of an increased evaluation due a limitation of forearm motion the Board observes that the veteran at his September 1992 VA compensation examination showed flexion to 145 degrees, and extension to 35 degrees. Under diagnostic code 5206, however, a 40 percent evaluation requires clinical evidence that flexion be limited to 55 degrees. In a similar light, a 40 percent evaluation under diagnostic code 5207 requires that extension be limited to 100 degrees. In light of all of the foregoing, the Board must conclude that an increased evaluation for the veteran’s service connected old nonunion fracture, right carpal navicular is not warranted. In reaching this decision the Board considered the fact that an extraschedular evaluation may be granted if the veteran’s disorder presents an exceptional or unusual disability picture with such related factors as a marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b). While the Board acknowledges that the veteran has reported problems retaining substantially gainful employment, the clinical evidence only shows that the disorder causes difficulty in jobs which require manual labor involving the right arm. There is no evidence that a marked interference with employment exists in positions which do not require manual labor. Moreover, the veteran does not exhibit the loss of use of his right arm so as to warrant special monthly compensation, and it is well to recall that the disability rating itself is recognition that industrial capabilities are impaired. See Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993). Accordingly, as there is no evidence of such factors as a marked interference with employment, or frequent periods of hospitalization, the Board concludes that an extraschedular evaluation under 38 C.F.R. § 3.321(b) is not warranted. The Board has also considered the provisions of 38 C.F.R. § 4.40, but there is no basis for a finding of functional loss due to pain sufficient to warrant a higher rating. In this regard, the Board observes that the veteran is already in receipt of a compensable rating which contemplates the existence of pain. Although pain to palpation over the wrist joint was noted, there were no other visible signs of pain on official examination in September 1992 until full extension of the right thumb was accomplished. Thus, in view of the evidence of record, the veteran is appropriately compensated by the 30-percent evaluation currently in effect. Finally, the Board considered the doctrine of reasonable doubt, but finds that the preponderance of the evidence is against the veteran’s claim, and hence the record does not provide an approximate balance of negative and positive evidence on the merits. Accordingly, the doctrine is not for application. ORDER The veteran's claims of entitlement to service connection for left arthritis, and right elbow ankylosis are dismissed. Entitlement to an increased rating for residuals of an old nonunion fracture of the right carpal navicular is denied. ___________________________________ DEREK R. BROWN 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 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.