Citation Nr: 0001676 Decision Date: 01/20/00 Archive Date: 01/28/00 DOCKET NO. 97-17 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for bilateral patellofemoral syndrome. 2. Entitlement to service connection for tendonitis. 3. Entitlement to service connection for athlete's foot or other fungus infection. 4. Entitlement to a higher initial rating for chronic medial tibial stress syndrome of the right leg, rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Associate Counsel INTRODUCTION The veteran served on active duty from October 1995 to August 1996. This appeal arises from a January 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania that denied service connection claims for bilateral patellofemoral syndrome, tendonitis, right leg stress fracture, and athlete's foot. The veteran has appealed to the Board of Veterans' Appeals for favorable resolution. The veteran submitted a substantive appeal in June 1997 indicating a desire for a hearing before a member of the Board. He did testify before an RO hearing officer in July 1997; however, his request for a hearing before a Board member went unnoticed until his claims file was forwarded to the Board. In a June 1998 letter addressed to the veteran at his mailing address of record, the Board requested that the veteran clarify whether he still desired a hearing before a Board member. The Board informed the veteran that if a response was not received within 30 days of the date of the letter, the Board would assume that the veteran no longer desired a hearing. No response was received from the veteran and the Board's letter was not returned as undeliverable by the Post Office. In December 1998, the veteran's representative reported that efforts to contact the veteran concerning this matter had failed. Because the veteran has not responded, the Board considers his request for a hearing before a member of the Board to be withdrawn. In January 1998, service connection for chronic medial tibial stress syndrome of the right leg was established by RO rating action and an initial 10 percent rating was assigned. In June 1998, the veteran's representative submitted a VA Form 646 that includes the initial rating for the right leg stress fracture as an issue on appeal. Because a January 1998 supplemental statement of the case described the evidence considered and the applicable rating criteria, the December 1998 written brief presentation is accepted as a substantive appeal. FINDINGS OF FACT 1. The veteran's assertion that he has bilateral patellofemoral pain syndrome related to active service is not supported by competent medical evidence of a diagnosis of bilateral patellofemoral pain syndrome; the claim is not plausible. 2. The claim for service connection for tendonitis lacks competent medical evidence of a current diagnosis of the condition; the claim is not plausible. 3. Athlete's foot or other fungus infection was first shown during active service and is related to the current foot condition. 4. The service-connected chronic medial tibial stress syndrome has been manifested throughout the appeal period by tenderness and pain on palpation of the mid tibia area; moderate knee or ankle disability is not shown. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well-grounded claim for entitlement to service connection for bilateral patellofemoral pain syndrome or for entitlement to service connection for tendonitis. 38 U.S.C.A. § 5107(a) (1991). 2. Athlete's foot or other fungus infection was incurred during active service. 38 U.S.C.A. §§ 1110, 1111, 1137 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1999). 3. The criteria for an initial rating higher than 10 percent for service-connected chronic medial tibial stress syndrome are not met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.41, 4.44, 4.45, 4.71a, Diagnostic Code 5262 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim that 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). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing post-service continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. I. Bilateral Patellofemoral Syndrome The veteran's service medical records (SMRs) are negative for bilateral patellofemoral syndrome or other knee complaints. In November 1996, a VA examiner gave a diagnosis of patellofemoral syndrome, by history, based solely on the veteran's reported medical history. In September 1997, a VA examiner reported that the right knee displayed full range of motion with no evidence of crepitus, effusion or warmth. The patella tracked well and was not tender. Significantly though, the examiner also reported a one-plus Lachman's sign and one-plus anterior Drawer sign of the right knee. The examiner's comments also suggest that similar symptoms were found at the left knee. In the diagnosis section of the report, the examiner clearly stated that the veteran's right knee pain was not caused by military service. The examiner then cautioned that the veteran's shin splint condition "could certainly cause his symptoms to be worse in his right knee and ankle because of the change in his ambulatory gait pattern, although on examination today he had a normal gait and ambulation." The Board notes that there is no diagnosis of the claimed condition. The examiner's referral to a "shin splint condition" appears to refer to the service-connected condition medial tibial stress syndrome of the right leg. Thus, there is no medical indication here that the veteran has bilateral patellofemoral syndrome as claimed. Although the veteran has attempted to supply a diagnosis of the claimed condition, the veteran, as a layperson without proper medical training and expertise, is not competent to provide probative evidence on a medical issue such as the diagnosis or etiology of a claimed medical condition. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). In this case, the Board emphasizes that to be well grounded the veteran's claim must be supported by a competent medical diagnosis. In the absence of competent evidence of a diagnosis to support the claim, the claim is not plausible and must be denied as not well grounded. As such, the VA is under no duty to assist the veteran in developing the facts pertinent to the claim. Epps, 126 F.3d at 1468. Furthermore, the Board is aware of no circumstances in this matter that would put VA on notice that any additional relevant evidence may exist which, if obtained, would well- ground the claim for service connection. McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997). It appears that the RO denied the veteran's claim for service connection on the merits, while the Board has concluded that the claim is not well grounded. However, the United States Court of Veterans Appeals has held that "when a RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded analysis." Meyer v. Brown, 9 Vet. App. 425, 432 (1996). II. Tendonitis The veteran's SMRs noted possible tendonitis in December 1995. An assessment of tendonitis of the tibialis anterior was made in April 1996. Later in April 1996, an examiner noted "tendonitis improved." In October 1996, the veteran requested VA service connection for tendonitis. The VA examination reports of November 1996 are negative for any mention of tendonitis except for the veteran's recollection of having been given an in-service diagnosis of tendonitis. In November 1997, a VA examiner noted that there was no pain to palpation at the posterior tibial tendon, no point tenderness in the ankle area, and that there was full strength in related muscles. In short, the veteran's claim lacks medical evidence of any current tendonitis. Although the veteran has attempted to supply a diagnosis of tendonitis, the veteran, as a layperson without proper medical training and expertise, is not competent to provide probative evidence on a medical issue such as the diagnosis or etiology of a claimed medical condition. Espiritu, 2 Vet. App. at 494-5. In this case, the Board emphasizes that to be well grounded the veteran's claim must be supported by a competent medical diagnosis. In the absence of competent evidence of a diagnosis of tendonitis to support the claim, the claim must be denied as not well grounded. As such, the VA is under no duty to assist the veteran in developing the facts pertinent to the claim. Epps, 126 F.3d at 1468. Furthermore, the Board is aware of no circumstances in this matter that would put VA on notice that any additional relevant evidence may exist which, if obtained, would well- ground the claim for service connection. McKnight, 131 F.3d at 1485. It appears that the RO denied the veteran's claim for service connection on the merits, while the Board has concluded that the claim is not well grounded. However, the United States Court of Veterans Appeals has held that "when a RO does not specifically address the question whether a claim is well grounded but rather, as here, proceeds to adjudication on the merits, there is no prejudice to the veteran solely from the omission of the well-grounded analysis." Meyer, 9 Vet. App. at 432. III. Athlete's Foot or Other Fungus Infection The veteran's SMRs reflect that he was examined for active duty in January 1995. The report contains no findings or complaints relevant to fungus infections. The veteran first complained of foot itching and cracking of the skin around the area of the toes in April 1996. He reported that the condition began the previous October. The veteran reported that it itched and sometimes hurt when he walked. The examiner noted visible cracks between the toes and gave an assessment of "most probably fungus infection of the feet." Lotrimin and foot care was prescribed. The veteran submitted a claim for service connection in October 1996, claiming that athlete's foot began in 1995. In November 1996, a VA general medical examiner found cracking and dry skin on the plantar aspect of the toes, bilaterally, consistent with athlete's foot. In July 1997, the veteran testified before an RO hearing officer that the foot symptoms have been visible continuously since boot camp and that the condition definitely did not exist prior to active service. Initially, the Board finds all of the elements necessary to well ground this service connection claim. There is medical evidence of the onset of an in-service fungal infection of the feet, medical evidence of a current athlete's foot infection, and competent lay evidence of continuity of symptomatology. Thus, the claim is plausible. However, the establishment of a plausible claim does not dispose of the issue. The Board must review the claim on its merits and account for the evidence that it finds to be persuasive and unpersuasive and provide reasoned analysis for rejecting evidence submitted by or on behalf of the claimant. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. See Alemany v. Brown, 9 Vet. App. 518 (1996), citing Gilbert, at 54. The Board finds that all relevant evidence for equitable disposition of this claim has been obtained to the extent possible and that no further assistance to the veteran is required to comply with VA's duty to assist him. See 38 U.S.C.A. § 5107(a) (West 1991). In order to establish service connection for a disability, the evidence must show it resulted from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1137 (West 1991); 38 C.F.R. § 3.303 (1999). The veteran is presumed to be in sound physical and mental condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that the injury or disease existed before acceptance and enrollment. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 1991); 38 C.F.R. § 3.304(b) (1999). Because the veteran is presumed to have been sound at entry, clear and unmistakable evidence demonstrating that the condition pre-exists service is required to rebut the presumption. No such evidence has been submitted in this case. The veteran testified that the condition began during boot camp and has continued since that time. The medical evidence of record indicates the condition began during active service and has continued to the present time. There is no evidence, medical or otherwise, that argues against service connection. The Board therefore finds that the evidence favors the claim for entitlement to service connection for athlete's foot or other fungus infection. IV. Initial Rating As a preliminary matter, the Board notes that the veteran's claim for a higher initial rating is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board also finds that all relevant evidence for equitable disposition of the claim has been obtained to the extent possible. Review of the history of the service-connected chronic medial tibial stress syndrome of the right leg reflects that this disability arose during basic training in December 1995 with discovery of effusion in the tibial tendon area. The assessment was tibialis tendonitis vs. sprain. The veteran's SMRs note that he was evaluated at the beginning of infantry school in January 1996 for shin splint screening. He complained of lower right leg pain for two to three weeks following a forced march in basic training. The examiner found point tenderness at the mid tibia on the medial side. Some of the examiner's handwritten notes are not legible but an assessment of stress fracture of the mid tibia was given. Limited duty for 30 days was recommended. A February 1996 report notes that X-rays were negative but the veteran was following stress fracture protocol. The assessment was rule out stress fracture, radiology read as negative, do bone scan. 30 days of limited duty was recommended. A bone scan, conducted in April 1996, indicated that very mild stress related changes were seen in the right tibia with similar but minimal changes at the same location in the left tibia. The impression was mild, right greater than left, stress changes within the right tibia. An April 1996 sports medicine consultation report notes complaint of pain with walking. There was pain along the medial edge of the right tibia and at the anterior tibialis tendon. The impressions were stress-related changes at the right tibia and tendonitis of the tibialis anterior. A cane and light duty were recommended to reduce weight bearing for two weeks. A later April 1996 treatment report indicates that the veteran's right leg felt much better and that he had requested to go back to full duty. The examiner noted minimal pain at the right tibia area. The impressions were stress-related changes of right tibia, asymptomatic, and tendonitis, improved. A May 1996 report notes that after the veteran returned to full duty the leg pain returned after running 1/4 mile. The impression was medial tibial stress syndrome, chronic. Later, a physical evaluation board recommended discharge. The veteran was subsequently discharged in August 1996. No separation examination report is of record. A November 1996 VA joints examination report contains a diagnosis of history of stress fracture of the right leg with residual pain. In July 1997, the veteran testified before an RO hearing officer that he had continued right leg pain at his job. He said that the pain was felt in both legs. He also reported that standing long periods at work caused right leg swelling. A September 1997 VA joints examination report notes that the veteran reported occasional sharp pain at the right knee and right ankle that was not related to any specific activity. He also reported a duller mid tibia pain. He reported occasional numbness of the right foot that was not position related. He reported that he was working and that the job did not aggravate these areas, although he did feel pain while working. He also reported that he was afraid to take on any new activities for fear of more pain. He denied any right knee or ankle instability, swelling, or night pain. The examiner noted that the veteran walked normally without limp. There was no evidence of gross atrophy of a lower limb or ecchymosis or contusion of the skin. The right knee displayed full range of motion with no evidence of crepitus, effusion or warmth. The patella tracked well and was not tender. There was no instability to varus or valgus alignment, although there was 3 degrees of valgus alignment on the right. He had one plus Lachman's sign and one-plus anterior Drawer sign on the right and was felt to be equal on the left. The right ankle was negative for erythema, warmth, anterior drawer, and talar tilt test. Range of motion and sensation was normal. Deep tendon reflexes at the knees and ankles were normal and equal bilaterally. He could ambulate on the toes and heels without difficulty. Strength was full and there was no pain at the posterior tibial tendon or at the right ankle. The veteran did report some pain to palpation at the mid aspect of the right tibia on the posterior medial aspect. X-rays of the right knee, leg, and ankle were normal. In the diagnosis section of the report, the examiner specifically reported that "his work function is not hampered by his injury." The examiner also reported that any pain was not activity related. The examiner felt that there was no reason that the veteran could not work without limitation. In January 1998, service connection for chronic medial tibial stress syndrome of the right leg was established by RO rating action and an initial 10 percent rating was assigned under Diagnostic Code 5299-5262 for malunion of the tibia or fibula with slight knee or ankle disability. The veteran appealed for a higher initial rating. Turning now to the initial rating assigned by the RO, the Board notes that disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (1999). Any reasonable doubt that arises in considering the evidence must be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (1999). The veteran's entire history is reviewed when making disability evaluations. See 38 C.F.R. §§ 4.1, 4.2, 4.41 (1999); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In cases such as this where the veteran has appealed the initial rating assigned after service connection is established, the Board must consider the initial rating, and, if indicated, the propriety of a staged rating from the initial effective date forward. See Fenderson v. West, 12 Vet. App. 119, 126-7 (1999). The rating schedule envisions that disabilities will be rated on the basis of functional impairment. Weakness is considered as important as limitation of motion and a part that becomes painful on use must be regarded as seriously disabled. It is the intent of the rating schedule to recognize painful motion with joint or periarticular pathology as productive of disability. See 38 C.F.R. §§ 4.40 and 4.45 (1999). The osseous abnormalities incident to trauma or disease, such as malunion with deformity throwing abnormal stress upon and causing malalignment of joint surfaces, should be depicted from study and observation of all available data, beginning with inception of injury or disease, its nature, degree of prostration, treatment and duration of convalescence, and progress of recovery with development of permanent residuals. 38 C.F.R. § 4.44 (1999). The tenets of DeLuca v. Brown, 8 Vet. App. 202 (1995), are not applicable to the case because the disability in question in not rated according to limitation of motion. With respect to the veteran's claim for a higher initial rating for chronic medial tibial stress syndrome, the Board notes that a 10 percent rating was assigned under Diagnostic Code 5299-5262, impairment of the tibia or fibula. The Board points out at this point that there appears to be no other applicable diagnostic code offering a higher rating. Therefore, the Board will consider a higher rating under Diagnostic Code 5262 only. Malunion of the tibia and fibula of either lower extremity warrants a 10 percent evaluation when the disability results in slight knee or ankle disability. A 20 percent evaluation requires that the malunion produce moderate knee or ankle disability. A 30 percent evaluation requires that the malunion produce marked knee or ankle disability. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (1999). The service-connected chronic medial tibial stress syndrome has been manifested throughout the appeal period by tenderness and pain on palpation of the mid tibia area. Moderate knee or ankle disability is not shown. Comparing the veteran's symptoms to the provision of the rating schedule, the Board agrees with the RO that the veteran's symptoms do not warrant assignment of a rating higher than 10 percent. The objective evidence indicates minimal or no functional disability. Although no muscle weakness or pain on motion is shown, the evidence indicates that there is right leg pain, although it is not activity related. Applying the tenets of 38 C.F.R. §§ 4.40, 4.44, and 4.45, the Board does not find additional impairment to warrant a 20 percent rating. In this regard, a VA examiner stated there was no impact on the veteran's ability to work. Therefore, even considering the impact of pain, the symptoms do not approximate the criteria for a 20 percent evaluation. In reaching its decision, the Board has considered the complete history of the disability in question (38 C.F.R. § 4.41) as well as the current clinical manifestation and the effect the disability may have on the earning capacity of the veteran. The Board has also considered the provisions of 38 C.F.R. § 4.7, which provide for assignment of the next higher evaluation where the disability picture more closely approximates the criteria for the next higher evaluations. Furthermore, this case does not involve an exceptional or unusual disability picture with such factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular rating standards. Thus, referral of the case to appropriate VA officials, for consideration of an extra-schedular rating, is not warranted. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996). In summation, the preponderance of the evidence is against the claim for a rating higher than 10 percent. Consequently, the benefit-of-the doubt doctrine is inapplicable and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At no time during the appeal period has the disability in question been shown to warrant a rating higher than that assigned. Therefore, a staged rating from the initial effective date forward is not necessary. Fenderson, 12 Vet. App. at 126-7. (CONTINUED ON NEXT PAGE) ORDER 1. In the absence of evidence of a well-grounded claim, the claims for service connection for bilateral patellofemoral syndrome and tendonitis are denied. 2. The claim for service connection for athlete's foot or other fungal infection is granted. 3. The claim for a higher initial rating for chronic medial tibial stress syndrome of the right leg is denied. J. E. Day Member, Board of Veterans' Appeals