Citation Nr: 0003977 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 98-19 996 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for numbness of the extremities. 2. Entitlement to an increased evaluation for a disability of the thoracic spine, currently evaluated as 20 percent disabling. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Jeanne Schlegel, Associate Counsel INTRODUCTION The veteran served on active duty from January 1993 to September 1996. This matter comes before the Board of Veterans' Appeals (the Board) from a March 1998 determination by the Department of Veterans Affairs (VA) Regional Office (RO) in which the RO denied service connection for numbness of the extremities and granted service connection for a disability of the thoracic spine, for which a 10 percent evaluation was assigned. By rating action of August 1999, the RO determined that the March 1998 rating action was clearly and unmistakably erroneous and that a 20 percent evaluation was warranted for the disability of the thoracic spine. In AB v. Brown, 6 Vet. App. 35 (1993), the United States Court Appeals for Veterans Claims (Court) held that, on a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation. Since an evaluation in excess of 20 percent is potentially assignable for the disability of the thoracic spine, the claim remains in appellate status before the Board. FINDINGS OF FACT 1. There is no current clinical evidence of record which establishes the presence of disability manifested by numbness of the extremities, or which establishes an etiological link between such a claimed disorder and service or a service connected condition. 2. The veteran's disability of the thoracic spine is characterized by complaints of pain and objective evidence of muscle spasms, spinal claudication and mild degenerative disc disease, without objective evidence of severe limitation of motion, weakness, fatigability, other appreciable functional loss. CONCLUSIONS OF LAW 1. The veteran has not presented evidence of a well-grounded claim for entitlement to service connection for a disability manifested by numbness of the extremities. 38 U.S.C.A. § 5107(a) (West 1991). 2. The requirements for a rating of in excess of 20 percent for a disability of the thoracic spine have not been met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran is seeking entitlement to service connection for numbness of the extremities. He is also seeking an increased rating for a disability of the thoracic spine. In the interest of clarity, these issues will be discussed separately. Entitlement to service connection for numbness of the extremities. Relevant law and regulations Service connection In general, the applicable law and regulations state that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). 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). Well groundedness of the claim The threshold question in every case is whether each claim presented is well-grounded under 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). There must be more than an allegation; the claim must be accompanied by supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The statutory duty to assist an appellant in the development of his claim does not arise unless and until a well-grounded claim is presented. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Factual Background The service medical records revealed that upon the enlistment examination conducted in November 1992, neurological evaluation was normal as was a clinical evaluation of the upper and lower extremities. In November 1995, the veteran was seen due to complaints of a possible strep throat. An entry dated later in November 1995 revealed that the veteran had a history of recurrent streptococcal pharyngitis and had complaints of arthralgia. An echocardiogram and Doppler evaluation performed in late November 1995 were normal. A December 1995 entry showed that the veteran was seen due to a history of numbness in the distal upper and lower extremities while doing exercise and that a provisional diagnosis of rule out peripheral vascular insufficiency was made. Following an evaluation, an assessment of normal peripheral vascular status as made. The service medical records also showed that EEG testing conducted in January 1996 was normal, although some abnormalities in motor conduction velocity and sensory conduction were noted upon previous nerve conduction testing. A neurophysiologic evaluation performed in January 1996 showed that muscle testing was normal. A March 1996 entry indicated that neuro-physiological, vascular, radiological and cardiological work-ups had been negative. A provisional diagnosis of thoracic back pain was made. In April 1996, the veteran was again seen for a follow-up for his thoracic pain, at which time an assessment of numbness and pain in the lower extremities was made. Upon separation examination conducted in May 1996, neurological evaluation was normal as was a clinical evaluation of the upper and lower extremities. It was noted on the separation examination that the veteran had been hospitalized in November 1995 due to a fever of 106 degrees, strep throat, high blood pressure and two convulsions. It was noted that the veteran experienced numbness in the lower extremities and back pain thereafter. On private neurological evaluation conducted in August 1996, motor and sensory velocities were normal for both the lower and upper extremities. It was concluded that there was no electrophysiological evidence of lesions of the lower and upper extremities. In August 1997, a lay statement was submitted by the veteran's wife. She indicated that he had become very ill while being stationed in Panama and that since that time he had complained of severe back pain and numbness in the arms and legs. A VA general medical examination was conducted in August 1997. The veteran complained that if he walked for any distance, he experienced numbness of the feet. He also reported that he experienced numbness of the fingertips. Physical examination revealed full range of motion of the extremities without apparent sensory motor limitation. Deep tendon reflexes were symmetrical and 1+. Coloration of the feet was normal. A VA examination of the joints was conducted in September 1997. The veteran complained of numbness in both lower extremities below the knee in association with exercise. He also reported having similar symptoms in the hands in association with walking. Upon physical examination the veteran could stand on his heels and toes. Deep tendon reflexes were equal in the upper and lower extremities. There was no numbness in the upper and lower extremities. Circulation was intact. Straight leg raising was negative. There was 4/5 quadriceps and anterior tibial group strength, which was also shown in the biceps and triceps. A diagnosis of lower extremity numbness and upper extremity tingling in association with exercise, of unknown etiology, was made. A private medical record dated in October 1997 showed that the veteran underwent peripheral arterial evaluation which reflected that the Doppler indexes were normal at rest. It appears that the record also indicated that intermittent claudication was shown on the right and left sides. A VA peripheral nerves examination was conducted in January 1998. The medical history indicated that in November 1995, the veteran came down with strep throat, high fevers to 106 degrees and several febrile convulsions. He noted that after that time, whenever he exercise or did anything active, his lower extremities would fall asleep and he would also experience numbness from below down to the feet which would resolve when he stopped exercising. He denied weakness and there was no evidence of chronic parasthesias. Physical examination revealed that motor power, bulk, and tone was normal in both upper and lower extremities. Reflexes were absent in the upper extremities, 1 at both patella, and 2+ at both Achilles. Plantar responses were downgoing. Rapid alternating movements and tandem gait were normal. Temperature and vibratory sensation and proprioceptive function were normal. An impression of spinal claudication was made; however, the examining physician requested that MRI studies be conducted. A March 1998 addendum to the VA examination reflected that MRI results had been reviewed showing mild degenerative disc disease. It was noted that there was no etiology for the veteran's complaints. Analysis The veteran contends that he has experienced numbness of the extremities ever since he was hospitalized in November 1995, during service. He maintains that the numbness affects the area from the knees to the feet and also the hands. As mentioned above, the initial matter which must be resolved on appeal is whether the veteran has presented a well- grounded claim. See 38 U.S.C.A. § 5107(a). In order for a claim to be well grounded, there must be competent evidence of a 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 in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). The Board notes that the service medical records clearly document complaints and treatment for such symptoms; thus, the second prong of the Caluza analysis (in-service incurrence) arguably has been satisfied. As noted above, the first element of a well-grounded claim is a presently-existing disability stemming from the disease or injury alleged to have begun in or been aggravated by service. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Absent evidence of a current disability, the claim is not well grounded. In this case, although there are subjective complaints of numbness of the extremities, a medical diagnosis of a disability primarily manifested by numbness of the extremities has not been made. Numerous tests conducted during service in conjunction with veteran's complaints yielded normal results. Upon private neurological evaluation conducted in August 1996, motor and sensory velocities were normal for both the lower and upper extremities. A peripheral arterial evaluation conducted in October 1997 reflected that the Doppler indexes were normal at rest. Upon VA examination conducted in 1997 a diagnosis of lower extremity numbness and upper extremity tingling in association with exercise, of unknown etiology, was made. A VA peripheral nerves examination conducted in January 1998, with subsequent MRI studies and March 1998 addendum, resulted in the examiner's conclusion that there was "no etiology for patient's complaints". Recently, the Court has had occasion to discuss what constitutes a disability. A symptom, such as pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted. See Sanchez- Benitez v. West, U.S. Vet. App. No. 97-1948 (December 29, 1999) [slip op. At 4]. In this case, there are subjective complaints of numbness of the veteran's extremities without any evidence of underlying pathology, despite extensive physical examinations and diagnostic studies. Since no competent medical evidence of current existence of any clinical disability manifested primarily by numbness of the extremities has been presented, this claim is not well grounded and must be denied, since the first prong of the Caluza analysis has not been met. With respect to the third Caluza element, medical nexus evidence, the discussion above should make it clear that no such evidence exists. The Court has held that "[i]n the absence of competent medical evidence of a current disability and a causal link to service . . ., a claim is not well grounded." Chelte v. Brown, 10 Vet. App. 268, 271 (1997). Therefore, inasmuch as the record currently does not contain medical evidence establishing the existence of a current disability primarily manifested by numbness of the extremities and no medical nexus evidence, the Board concluded that the veteran has failed in his duty to submit evidence which would justify a belief by a fair and impartial individual that the claim is plausible. Accordingly, the claim is denied. Additional Matters When the Board addresses in its decision a question that has not been addressed by the RO, it must consider whether the appellant has been given adequate notice to respond and, if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the Board has concluded that the veteran has not submitted a well grounded claim for entitlement to service connection for numbness of the extremities. The Board finds that the veteran has been accorded ample opportunity by the RO to present argument and evidence in support of his claim and that any error by the RO in deciding this case on the merits, rather than on the narrower basis of not being well grounded, was not prejudicial. The RO accorded his claim more consideration than was warranted. Cf. Edenfield v. Brown, 8 Vet. App. 384, 391 (1995). Further, because the claim is not well grounded, the VA is under no duty to further assist the veteran in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). VA's obligation to assist depends upon the particular facts of the case and the extent to which VA has advised the veteran of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). The Court has held that the obligation exists only in the limited circumstances where the appellant has referenced other known and existing evidence. Epps v. Brown, 9 Vet. App. 341, 344 (1996). In this case, the VA is not on notice of any known and existing evidence which would make the service connection claim well-grounded. The Board's decision serves to inform the veteran of the kind of evidence which would be necessary to make his claim well grounded. The Board notes that the veteran himself recognizes that numbness itself is a symptom and not a disability and argues essentially that the VA has not assisted him in providing an adequate VA examination determining the source or condition causing the numbness of the extremities claimed herein. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), VA has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the Court issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Moreover, the duty to assist as interpreted by the Court is circumscribed and appears to apply to evidence which may exist and which has not been obtained. See Counts v. Brown, 6 Vet. App. 473, 478-9 (1994). By way of contrast, the veteran in this case wishes VA to provide evidence which admittedly does not now exist. As the Court has stated: "The VA's . . . . 'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim." Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992). Entitlement to an increased evaluation for a disability of the thoracic spine, currently evaluated as 20 percent disabling. The veteran's service-connected thoracic spine disability is currently evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5003 and 5295. Relevant law and regulations Disability ratings are intended to compensate reductions in earning capacity as a result of the specific disorder. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such disorder in civilian occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321(a), 4.1 (1999). Separate diagnostic codes identify the various disabilities. 38 C.F.R., Part 4. Where 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson v. West, 12 Vet. App.119 (1999), however, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Since this is an appeal of an initial rating assignment, the Board is not limited to consideration of the most current evidence of the veteran's disability. Additional law and regulations will be discussed where appropriate below. Factual Background The service medical records included several entries documenting problems occurring in the thoracic spine during service. X-ray films of the thoracic spine taken in March 1996 revealed questionable straightening of the normal curvature of the mid-thoracic spine, most likely related with muscle spasm. A bone scan of the spine taken in March 1996 was normal. Upon separation examination conducted in May 1996, clinical evaluation of the spine was normal. On the examination report the veteran indicated that he experienced recurring back pain during certain motions. He indicated that these problems had been present since November 1995. A VA general physical examination was conducted in August 1997. The medical history indicated that the veteran had been hospitalized in November 1995 and that following the hospitalization he experienced pain over the muscles of the mid back for approximately two weeks following discharge. It was reported that two months later he again experienced symptoms. A CAT scan, echocardiogram, nerve conduction studies and X-ray films taken of the spine were normal. The veteran complained of frequent muscular back pain. Upon examination, palpation over the spine was non-tender. A VA examination of the joints was conducted in September 1997. The veteran complained that his upper back muscles were chronically tight, but denied any lower back pain. Physical examination of the spine revealed some tenderness in the rhomboidal area. There was no lumbar tenderness or spasm. Range of motion testing revealed 90 degrees of forward flexion, 15 degrees of hyperextension, lateral bending of 30 degrees in both directions and 35 degrees of rotation in both directions. Diagnoses of chronic thoracic strain and early degenerative disc disease of the lumbar spine were made. A VA peripheral nerves examination was conducted in January 1998. It was noted that a CT scan of the spine had shown levoscoliosis, but was otherwise normal. The veteran complained of chronic mid thoracic and low back pain since his illness. It was noted that the pain in the back was localized to about T8 on the left side and that there was some muscle spasm on this level. An impression of spinal claudication was made. An March 1998 addendum to the VA examination reflected that the MRI results had been reviewed showing mild degenerative disc disease. By rating action of March 1998, the RO granted service connection for degenerative disc disease of the thoracic spine, for which 10 percent evaluation was assigned under Diagnostic Codes 5003-5295. Subsequently, in an August 1999 rating action, the RO determined that clear and unmistakable error had been made in the March 1998 rating action and that a 20 percent was warranted for the veteran's disability of the thoracic spine, effective from September 30, 1996, the day following the veteran's discharge from service. Analysis A claim for an increased rating is regarded as a new claim and is subject to the well-groundedness requirement. Proscelle v. Derwinski, 2 Vet. App. 629, 631 (1992). In order to present a well grounded claim for an increased rating of a service-connected disability, the veteran need only submit his competent testimony that symptoms, reasonably construed as related to the service-connected disability, have increased in severity since the last evaluation. Proscelle, 2 Vet. App. at 631, 632; see also Jones v. Brown, 7 Vet. App. 134 (1994). The veteran has stated that the symptoms of his service-connected disability of the thoracic spine have increased. The Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has initially presented subjective complaints which, given the nature of the disability involved, are sufficient to make his claim plausible. When a claim has been determined to be well grounded, VA has a statutory duty to assist the veteran in the development of his claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant facts have been properly developed. Moreover, there is no indication that there are additional records which would aid in its decision. The Board concludes that the record is sufficient to render an informed decision and that there is no further duty to assist the veteran in developing his claim under 38 U.S.C.A. § 5107(a). Once the evidence has been assembled, it is the responsibility of the Board to weigh the evidence. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Discussion As noted above, the veteran is in receipt of a 20 percent evaluation for a disability of the thoracic spine currently evaluated under Diagnostic Code 5003-5295. This is consistent with recent medical diagnoses of chronic thoracic strain and degenerative disc disease. Degenerative arthritis when 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 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. Note (2) of DC 5003 states that the 20 percent and 10 percent ratings based on x-ray findings under DC 5003 will not be utilized in rating conditions under DC 5013. 38 C.F.R. § 4.71a, DC 5003 (1998). Under Diagnostic Code 5291, compensable ratings are assigned for limitation of motion of the dorsal spine when that limitation is slight (0 percent), moderate (10 percent), or severe (10 percent). 38 C.F.R. § 4.71a, Diagnostic Code 5291 (1999). Since the veteran is rated as 20 percent under Diagnostic Codes 5003 and 5295, rating under Diagnostic Codes 5003 and 5291 would provide him no benefit. The provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5295, pertaining to lumbosacral strain, provide that a 20 percent evaluation is warranted for lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. A rating of 40 percent under Diagnostic Code 5295 contemplates a severe disability, with symptoms such as listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, a 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. 38 C.F.R. § 4.71a, Diagnostic Code 5295. The Board finds that Diagnostic Code 5295 is the most appropriate for the evaluation of the veteran's disability. See 38 C.F.R. § 4.20. Under Diagnostic Code 5295, an evaluation of 40 percent is assigned when lumbosacral strain is shown to be severe with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, a 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. Recent VA medical examinations found the veteran's disability of the spine was characterized by pain in the back localized to about T8 on the left side and some muscle spasm on this level. The recent medical evidence does not establish the presence of severe strain characterized by listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteo-arthritic changes, narrowing or irregularity of joint space, or abnormal mobility on forced motion. Accordingly, an evaluation in excess of 20 percent is not warranted under Diagnostic Code 5295. The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45 and 4.59 (1998). See Johnson v. Brown, 9 Vet. App. 7 (1996) and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Consideration of pain and limitation of function is thus warranted in this case. See VAOPGCPREC 36-97. However, it is also noted that findings of dysfunction due to pain must supported by adequate pathology, such as evidence of weakness or atrophy. See 38 C.F.R. § 4.40. Although the medical records document the veteran's subjective reports of back pain, the objective medical findings did not document any evidence of pain upon range of motion testing. As indicated previously, the veteran denied weakness associated with his dorsal spine disability, and none was found on recent examination. Essentially, there is no evidence of functional impairment attributable to pain or any other source which is productive of severe disability of the thoracic spine. Therefore, the Board finds that the veteran's lumbar spine disorder is appropriately rated at 20 percent. See 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5295. In this case, the Board is unable to identify any clinical evidence which would provide a basis for the assignment of an evaluation in excess of 20 percent at any time from September 30, 1996 forward. See Fenderson v. West, 12 Vet. App.119 (1999). The Board finds that the preponderance of the evidence is against the veteran's claim. Accordingly, a rating higher than 20 percent is not warranted and is denied. ORDER A well grounded claim of entitlement to service connection for numbness of the extremities not having been presented, the claim is denied. Entitlement to an evaluation in excess of 20 percent for a disability of the thoracic spine is denied. Barry F. Bohan Member, Board of Veterans' Appeals "Thoracic spine" and "dorsal spine" are synonymous. See Reiber v. Brown, 7 Vet. App. 513, 515 (1995): "Thoracic vertebrae are 'any of the 12 vertebrae dorsal to the thoracic region and characterized by articulation with the ribs.' ", citing Webster's Medical Desk Dictionary 715 (1986).