Citation Nr: 0004462 Decision Date: 02/18/00 Archive Date: 02/23/00 DOCKET NO. 98-13 964A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES Entitlement to service connection for bilateral carpal tunnel syndrome, arthritis of both hands, a right foot injury and a ruptured disc of the low back. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K.L. Salas, Associate Counsel INTRODUCTION The veteran had active military service from June 1960 to May 1980. This appeal arose from a May 1998 rating decision by the Department of Veterans Affairs (VA) San Diego, California Regional Office (RO). The RO denied the veteran's claims of entitlement to service connection for bilateral carpal tunnel syndrome, arthritis of both hands, a right foot injury and a ruptured disc of the low back. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. In connection with his appeal on the issue of entitlement to service connection for a right foot injury the veteran has asserted that shoe supports were prescribed in service. Service medical records show notations of bilateral pes planus and treatment with appliances in February 1971 for uncorrected varus with a history of pes planus. It appears that he may be claiming service connection for bilateral pes planus, and this issue is referred to the RO for appropriate action. Godfrey v. Brown, 7 Vet. App. 398 (1995). This question is not inextricably intertwined with the issue of entitlement to service connection for residuals of a right foot injury, which can be adjudicated without adjudicating the question of pes planus. Harris v. Derwinski, 1 Vet. App. 180 (1991). FINDINGS OF FACT 1. There is no medical evidence of a nexus between a current diagnosis of carpal tunnel syndrome or borderline carpal tunnel syndrome and symptoms of hand or left arm pain, or a diagnosis of arthralgias in service. 2. There is no medical evidence of a nexus between the current diagnosis of interphalangeal arthritis and symptom of finger pain, or the assessment of arthritis in service. 3. There is no medical evidence of a nexus between currently diagnosed back disorders, including degenerative disc disease of the lumbar spine, and symptom of back pain, diagnosis of arthralgias, or a spinal tap in service. 4. There is no medical evidence of a nexus between a current diagnosis of osteopenia or a calcaneal spur of the right foot, and a right foot injury or a diagnosis of a toe sprain in service. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for bilateral carpal tunnel syndrome is not well grounded. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The claim of entitlement to service connection for arthritis of both hands is not well grounded. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.303. 3. The claim of entitlement to service connection for a right foot injury is not well grounded. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.303. 4. The claim of entitlement to service connection for a ruptured disc of the low back is not well grounded. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background A notation in a service medical record from February 1963 indicated that the veteran reported pain in his back. Muscle spasm was noted. In October 1963 the veteran received a check of the fingers of both hands. The assessment was traumatic arthritis. A June 1964 examination report noted bilateral second degree pes planus that was not considered disabling. The upper extremities and spine were normal. The veteran was found qualified for discharge and reenlistment. The only defect noted was bilateral asymptomatic second degree pes planus, which was nondisabling. An examination dated in March 1969 showed no disability of the upper or lower extremities or spine. By history the veteran reported a history of arthritis or rheumatism. He denied foot trouble. A notation was made that the veteran had pain in the fingers several years before with no sequelae. A discharge and immediate reenlistment examination report dated in May 1970 showed no disability of the upper or lower extremities or spine. In February 1971 the veteran received treatment for pain in the balls of the feet. By history there were flat feet bilaterally. The impression after examination was uncompensated varus. Appliances were prescribed. In June 1971 the veteran complained of pain in the coccyx after receiving a spinal tap. The assessment was post traumatic arthralgia. In a follow-up appointment a week later, the veteran reported that he felt his symptoms were worsening. The assessment was questionable arthralgia. The veteran had undergone an appendectomy in April 1971. In January 1973 the veteran reported that he slid into a door and had intermittent pain in the big toe. It was felt that there was a hematoma and sprain of the proximal interphalangeal (PIP) and distal interphalangeal (DIP) joints. A follow-up report about a week later noted complaints of stiffness and soreness after running. Which foot was affected was not specified in either report. A February 1974 examination report noted that the upper and lower extremities and spine were normal. In a note from April 1975, the veteran reported left arm pain. He also reported a history of arthritis about 13 years before with swelling and aching of the hands. The impression was rule out bursitis and rheumatoid arthritis. In August 1977 the veteran received treatment for blistering on the instep of each foot. The assessment was acute inflammation of the left foot. The veteran's retirement examination from December 1979 showed no abnormality of the feet, upper extremities, or back. He gave a history of arthritis, rheumatism or bursitis, and foot trouble. He denied a history of recurrent back pain and stated that to his knowledge he was in the best of health except for sinusitis and flat feet. A private orthopedic report dated in September 1984 addressed to the U.S. Department of Labor notes a date of injury of November 1982 and a claim number. The veteran continued to have pain in one of his forearms. No specific diagnosis was made but the report recommended restrictions with respect to both hands. The veteran underwent a VA examination in connection with unrelated claims in November 1988. A musculoskeletal examination was performed which focused on the veteran's right shoulder. There were no complaints referrable to the feet, hands/wrist, or back, and no diagnosis was made of a disabling condition affecting the feet, hands/wrists, or back. When he filed his claim for VA benefits in October 1997, the veteran submitted medical records from April 1992 to September 1997 showing treatment of neck, shoulder, arm, wrist, low back, hip and lower extremity symptoms. There are numerous treatment notes and reports from the veteran's private physicians to the Department of Labor, Office of Workers' Compensation Programs (OWCP). These pertain to efforts of the veteran to receive disability compensation and medical treatment. The reports indicate that the veteran's physicians reviewed older medical records, which the veteran had in his possession. The veteran has not provided these original treatment records from the 1980's to the Board, and he has refused to authorize VA to obtain records pertaining to claims with the Department of Labor. He has asserted that the injuries for which he was claiming entitlement to service connection were not accepted injuries by the Department of Labor, OWCP. (VA Form 21-4142, received in August 1998). The records provided by the veteran show a medical history of the veteran developing lower extremity pain after doing gardening work in a bent-over position in 1982. In November 1982 he suffered a laceration of the right forearm with damage to the radial artery, the radial nerve and forearm tendons. He subsequently developed a neuroma in the region of the laceration and underwent a transplant of the radial nerve. The veteran reported a back injury due to repetitive lifting at work in July 1987. The pertinent diagnoses from the private treatment records include carpal tunnel syndrome (or borderline carpal tunnel syndrome) of both wrists, status post flexor tenosynovectomy, epineural neurolysis and right carpal tunnel release in April 1996, laceration of the right forearm with tendon, nerve, and artery injury, radial nerve transplantation for neuroma, interphalangeal arthritis of the right thumb, moderate pes planovalgus, degenerative arthritis of the lumbar spine, degenerative disc disease at L3-S1, a herniated nucleus pulposus at L4-5 and L5-S1, lumbar spondylosis, L5-S1 radiculopathy, and a chronic lumbar strain/sprain. In April 1992 a private physician reported that the veteran's right wrist disorder (diagnosed as status post laceration of the superficial radial nerve of the right forearm) was attributable to a 1987 work injury. Interphalangeal joint arthritis of the right thumb was due to the normal progression of the disease and was not due to any industrial injury. The etiology of the thumb disorder was not explained. In May 1992 it was noted that the veteran was "on disability due to a job related injury" to (amongst other things) the right hand. July 1992 laboratory tests showed a negative rheumatoid factor. In a September 1992 record the veteran's doctor stated that the veteran's back condition - diagnosed at the time as a herniated nucleus pulposus at L4-5 and L5-S1 and rule out radiculopathy - "may be possibly industrially related." In November 1992 the veteran asserted that low back problems were from an industrial injury that occurred in 1987 due to repetitive lifting while working as a mechanic. He told the doctor that lower back problems had been accepted as work related. He reported that he had back pain since 1987 but stated that prior to that time he was fine. In a report from April 1993 a doctor stated that the veteran's back condition was "most likely related to his work activities, beginning in 1987." In a report in January 1996 the veteran's doctor stated that the veteran had complained of carpal tunnel symptoms related to work activities since 1984 as documented in medical records in his possession. Records from early 1997 indicate that a lower back disorder was found to be not work related by the Department of Labor. A record from July 1997 noted that a final appeal was pending at the OWCP on the issue of compensability of the veteran's low back injury. As of August 1997 authorization from the Department of Labor for left carpal tunnel surgery had not been received. There is no history given by the veteran of service etiology, and none of the records lists an impression of service etiology. A subsequently received report of a radiographic study of the right foot dated in August 1997 showed osteopenia and a two millimeter posterior calcaneal spur. In his VA Form 9, Appeal to Board of Veterans' Appeals, submitted in September 1998 the veteran asserted that bilateral carpal tunnel syndrome was not "diagnosed properly" in service and a diagnosis was not made until the 1980's. He also felt that his back disorder was misdiagnosed in June 1971 and that the disorder resulted from an unspecified surgical procedure. He stated that his complaints stopped in service because his military occupation was changed from auto mechanic to supply administration but started again with a manual laboring job in 1980. With respect to his claim of entitlement to service connection for a right foot injury the veteran asserted that he was issued shoe supports that he wore in service, and which are still required. Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. This may be accomplished by affirmatively showing inception or aggravation during service or through the application of statutory presumptions. Each disabling condition shown by a veteran's service records, or for which service connection is sought must be considered on the basis of the places, types and circumstances of the veteran's service as shown by service records, the official history of each organization in which the veteran served, medical records and all pertinent medical and lay evidence. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of VA to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 C.F.R. § 3.303(a) (1999). With chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain in service will permit service connection of arthritis, first shown as a clear-cut clinical entity, at some later date. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "Chronic." When the disease identity is established there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately 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). 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). Arthritis is presumptively service connected if manifested to a compensable degree of 10 percent or more within one year after service. 38 C.F.R. §§ 3.307, 3.309(a) (1999). Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Grottveit v. Brown, 5 Vet. App. 91, 92 (1993). For a claim for service connection to be well grounded, there must be competent evidence of a current disability in the form of a medical diagnosis, of incurrence or aggravation of disease or injury in service in the form of lay or medical evidence, and of a nexus between in service injury or disease and current disability in the form of medical evidence. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The second and third elements of the Caluza test can also be satisfied by evidence that a condition was "noted" in service or during an applicable presumptive period; evidence showing post service continuity of symptomatology; and medical or, in certain circumstances, lay evidence between the present disability and the post service symptomatology. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488 (1997). Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). A layperson without medical training or experience is not competent to offer medical diagnoses or opinions on etiology. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Therefore a claim based only on the veteran's lay opinion is not well grounded. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In Clyburn v. West, 12 Vet. App. 296 (1999), the United States Court of Appeals for Veterans Claims ("the Court") found that while there was evidence of both a current diagnosis and in-service incurrence, no medical nexus evidence had been submitted. The Court rejected the appellant's contention that his continued complaints of knee pain since service, coupled with his diagnosis of chondromalacia patellae just six months after his discharge, were sufficient to satisfy the nexus prong. The issue was one of etiology and therefore the case did not present an issue that could be satisfied by lay testimony. There was no competent medical evidence that the appellant's current condition, whether chondromalacia patellae or degenerative joint disease, was the same condition or related to the knee problems he experienced while on active duty. Although the veteran was deemed competent to testify to the pain he experienced since his tour of duty, he was found to not be competent to testify to the fact that what he experienced in service and since service was the same condition he was currently diagnosed with. Even under 38 C.F.R. § 3.303(b), medical evidence is required to demonstrate a relationship between a present disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. In determining whether a claim is well grounded, the claimant's evidentiary assertions are presumed true unless inherently incredible or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). The Court has held that if the veteran fails to submit a well-grounded claim, VA is under no duty to assist in any further development of the claim. 38 U.S.C.A. § 5107(a); Gilbert v. Brown, 5 Vet. App. 91, 93 (1993); Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); 38 C.F.R. § 3.159(a) (1999). Analysis The Board reiterates the three requirements for a well- grounded claim: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease of injury; and (3) medical evidence of a nexus between the claimed in- service injury or disease and a current disability. See Caluza, supra. The Board's review of the evidentiary record discloses that although bilateral carpal tunnel syndrome (or borderline carpal tunnel syndrome) is shown, carpal tunnel syndrome was not diagnosed in service or for many years thereafter, and the entire evidentiary record is devoid of a competent opinion providing a nexus between the current diagnoses and the veteran's active service. More specifically, there is no medical evidence of a nexus between a current diagnosis of carpal tunnel syndrome or borderline carpal tunnel syndrome and complaints of hand or left arm pain or diagnosis of arthralgias in service. The veteran asserts that carpal tunnel syndrome started in service but was misdiagnosed by service physicians. This statement by the veteran is not supported by any competent medical evidence, and the veteran's lay opinion on the medical questions of diagnosis and etiology is not competent in the absence of such supportive evidence. See Espiritu, 2 Vet. App. 492. The veteran did report left arm pain in April 1975. The assessment was rule out rheumatoid arthritis and bursitis. Neither diagnosis was shown on discharge. The mere existence of arm pain in service and arm pain continuing after service is not sufficient to conclude that the veteran's current disorder had its inception during active military service. 38 C.F.R. § 3.303(b). See also Savage, 10 Vet. App. 488; Clyburn, 12 Vet. App. 296. As in Clyburn, the question at issue here is a nexus to service or medical etiology. This is a question beyond the competency of the veteran, a layperson without demonstrable medical training or experience, to establish. As for arthritis of the hands, in October 1963 the veteran reported finger pain and an assessment of traumatic arthritis was made. However, there were no x-ray findings of arthritis and no further complaints or findings indicating arthritis or arthralgia of the fingers throughout the remainder of his service. In 1969 the veteran reported a current or past history of arthritis or rheumatism and a history of finger pain but it was noted that there were no sequelae. The veteran does have post service complaints of finger pain and a diagnosis has been made of interphalangeal joint arthritis of the right thumb. In 1992 interphalangeal arthritis was felt to be due to a natural disease progression. In 1996 thumb spasms were felt to be due in part to carpal tunnel syndrome. Notwithstanding the existence of finger pain on one occasion in service and postservice complaints of finger pain, the veteran's claim is lacking under Caluza, and does not meet the required threshold showing of well groundedness. There was no showing of actual arthritis of the fingers in service or at the time of the veteran's discharge from service or in the one-year presumptive period for arthritis. In fact arthritis was not diagnosed until many years after service. Importantly, the record also lacks competent evidence of a nexus between the current findings and diagnoses and the veteran's service. There is no medical evidence of a nexus between the current diagnosis of interphalangeal arthritis and hand or finger pain in service. See Caluza, 7 Vet. App. 498; Savage, 10 Vet. App. 488. With respect to the claim of residuals of a right foot injury, most of the references in service pertain to pes planus, not an injury to the right foot. The veteran does appear to have sprained the PIP and DIP joints of a toe of one of his feet in 1973 when he slid into a door. However, subsequently, there was no indication of a disabling condition of the right foot or any residuals of a right foot injury in service or for many years thereafter. Osteopenia and a calcaneal spur of the right foot, neither of which was diagnosed in service, were shown many years after the veteran's discharge from service. As with the other claims, the veteran's claim of entitlement to service connection for residuals of a right foot injury is not well grounded because there is no medical nexus drawn between the current diagnoses and the veteran's service. There is no medical evidence of a nexus between currently diagnosed osteopenia and a calcaneal spur of the right foot and a right foot injury or a toe sprain in service. Caluza, 7 Vet. App. 498; Savage, 10 Vet. App. 488. The veteran's contentions about the onset of his back injury are somewhat unclear. It appears that his contention is that the back was injured as a result of a surgical procedure in service. The service medical records show some muscle spasm with back pain acutely in February 1963. Thereafter, in June 1971, he reported pain in the coccyx after receiving a spinal tap. He had recently undergone an appendectomy operation. This seems to be the most likely source of the veteran's contention. However, while the above treatment and complaints were noted in the service medical records, the veteran was not shown to have any chronic back disorder in service and on discharge no disorder of the back was shown. The veteran has had extensive post service treatment of the back with multiple diagnoses including degenerative disc disease. However there is nothing in the medical records suggesting that the veteran's current back disorder has an etiological relationship to an injury of the back, including surgery in service. In fact, the veteran told private medical providers after service that he had not had any back problems prior to an injury at work in 1987. The only medical opinions on etiology of back complaints do not attribute the veteran's condition to his service. Rather they attribute back pain to post service employment. There is no medical evidence of a nexus between currently diagnosed back disorders including degenerative disc disease of the lumbar spine and back pain, arthralgias or a spinal tap in service. Caluza, 7 Vet. App. 498; Savage, 10 Vet. App. 488. As noted in Savage and Clyburn evidence to show chronicity must be medical unless it relates to a disorder as to which lay evidence is competent and lay evidence is not competent on questions of etiology. Savage, 10 Vet. App. 488, 498; Clyburn, 12 Vet. App. 296. The veteran had instances of treatment for left arm pain, hand pain, a foot injury with a diagnosis of a toe joint (PIP and DIP) sprain, and back pain in service but no chronic disorders were shown. Even to the extent that the veteran has contended that he has had continuity of arm, hand, right foot and back pain after service, and treating these complaints of symptoms as credible for purposes of ascertaining whether well-grounded claims have been submitted, the record lacks medical evidence that the post service diagnoses are consistent with in service symptoms and diagnoses as well as post service symptomatology. In essence, the veteran's claims are based solely on his lay opinion. He has not offered any evidence of medical training or expertise rendering him competent to offer an opinion as to diagnosis and/or etiology of a disorder. He is clearly alleging facts beyond his competency. Espiritu, 2 Vet. App. 492; King, 5 Vet. App. 19, 21. Accordingly, the claims of entitlement to service connection must be denied as not well grounded and in so concluding the Board reaffirms the basis for denial provided by the RO. As the claims of entitlement to service connection are not well grounded, the doctrine of reasonable doubt has no application to the veteran's case. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Moreover, because the veteran has not submitted well-grounded claims of entitlement to service connection for bilateral carpal tunnel syndrome, arthritis of both hands, a right foot injury and a ruptured disc of the low back, VA is under no obligation to assist him in the development of facts pertinent to the claims. 38 U.S.C.A. § 5107(a); Epps, 126 F.3d 1464; Morton, 12 Vet. App. 477. The Board is cognizant, however, that the Court has held that VA may have an obligation under 38 U.S.C.A. § 5103(a)(West 1991) to advise the claimant of evidence needed to complete a claim. Beausoleil v. Brown, 8 Vet. App. 459 (1996). The Court has held that the section 5103(a) duty requires that, when a claimant identifies medical evidence that may complete an application but is not in the possession of VA, VA must advise the claimant to attempt to obtain that evidence. Brewer v. West, 11 Vet. App. 228 (1998). See also McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997); Robinette v. Brown, 8 Vet. App. 69. 80 (1995). In this case, the RO has informed the veteran of the evidence necessary to support his claims, thus fulfilling its duty in this instance. The veteran has not indicated the existence of any evidence that has not already been obtained and/or requested that would well ground his claims. 38 U.S.C.A. § 5103(a). (CONTINUED ON NEXT PAGE) ORDER The veteran has not submitted well-grounded claims of entitlement to service connection for carpal tunnel syndrome, arthritis of both hands, a right foot injury or a ruptured disc of the lower back, and therefore his claims are denied. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals