BVA9507508 DOCKET NO. 91-47 447 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to a compensable evaluation for a service- connected right thumb strain disability. 2. Entitlement to service connection residuals of injuries to the right elbow, low back and left heel. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher P. Kissel, Associate Counsel INTRODUCTION The appellant had active service in the United States Army from July 1986 to July 1990, and from January to March 1991. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a November 1990, rating decision of the Buffalo, New York, Department of Veterans Affairs Regional Office (VARO). The procedural history of this case has been thoroughly set forth in the Board's remand decision of April 14, 1992. In accordance with the Board's April 1992, remand, the requested development was accomplished, to the extent possible, and the case has been returned to the Board for further appellate review. With respect to the development of the record on appeal, it is the opinion of the Board that VARO fulfilled its statutory duty to assist the appellant in developing the pertinent facts in this case; notwithstanding thoroughly exhaustive efforts which have been carefully documented of record, it appears that all service medical records which are available have been associated with the claims file. See Dusek v. Derwinski, 2 Vet.App. 519 (1992). Accordingly, the Board will proceed to a disposition on the issues which are presently certified for appellate consideration. See Certification of Appeal, VA Form 1-8 (confirmed on February 2, 1995). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in substance, that his right thumb strain disability is more disabling than currently evaluated. In addition, the appellant believes that residuals of injuries to his right elbow, low back and left heel sustained during his first period of service coincident with parachute jump training exercises resulted in disabilities for which he is now entitled to service connection. DECISION 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(s). 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 appellant's service-connected right thumb strain disability warrants an increase from the currently assigned noncompensable evaluation to a 10 percent rating. Further, it is the decision of the Board that a preponderance of the evidence is against the appellant's claim seeking entitlement to service connection for residuals of injuries to his right elbow, low back and left heel. FINDINGS OF FACT 1. The appellant had active service in the U. S. Army from July 1986 to July 1990, and from January to March 1991. 2. Residuals of the appellant's right thumb strain disability are currently manifested by chronic symptoms of pain, with negative clinical findings showing limited range of motion, tenderness or deformity. 3. The record on appeal supports the appellant's account of receiving treatment in service for various bone and joint injuries sustained in connection with parachute jump training exercises; however, clinical findings noted in service were essentially unremarkable and radiographic studies of the left heel taken in service were negative for any abnormalities. 4. VA examination conducted in September 1990, was negative for any clinical evidence showing residual disability to the appellant's right elbow, low back or left heel. 5. There is no objective evidence of record showing continuity of pertinent symptomatology or treatment to establish chronic residuals of injuries sustained in service to the appellant's right elbow, low back or left heel. CONCLUSIONS OF LAW 1. The schedular criteria for an evaluation of 10 percent for a right thumb strain disability are met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. § 3.321, Part 4, Diagnostic Code 5224 (1994). 2. No chronic residuals of right elbow, low back and left heel injuries were incurred in or aggravated by military service. 38 U.S.C.A. §§ 1101, 1131, 1153, 5107(b) (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). Furthermore, the undersigned believes that this case has been adequately developed for appellate purposes by VARO and that a disposition on the merits is now in order. I. Increased Disability Evaluation The appellant is seeking a higher (compensable) disability evaluation for his service-connected right thumb strain disability. 38 U.S.C.A. § 1155 (West 1991). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 C.F.R. Part 4 (1994). Separate diagnostic codes identify the various disabilities. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1994); Peyton v. Derwinski, 1 Vet.App. 282 (1991). According to the applicable rating criteria, favorable ankylosis of the thumb is rated 10 percent disabling (major or minor hand); unfavorable ankylosis (major or minor) is rated 20 percent disabling. 38 C.F.R. Part 4, Code 5224 (1994). Where the minimum schedular evaluation requires residuals and the schedule does not provide for a noncompensable evaluation, such a noncompensable evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31 (1994). In this case, the medical evidence of record reflects a current diagnosis of "[r]esiduals of strain injury to the right thumb with occasional pain," with entirely negative clinical findings showing any limited range of motion, tenderness or deformity. See Report of VAX conducted in September 1990. However, since pain is a significant and consistent factor of his overall disability picture, the undersigned believes that there is sufficient evidence to satisfy the criteria for a compensable evaluation. 38 C.F.R. § 4.40 (1994). Since there is no evidence whatever showing either favorable or unfavorable ankylosis of his right thumb, it is further the opinion of the undersigned that the disability does not warrant an evaluation in excess of 10 percent. The Board does not believe that application of the extraschedular provisions is warranted in this case. 38 C.F.R. § 3.321(b) (1994). There is no evidence that the right thumb disability presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Hence, referral by VARO to VA officials under the above-cited regulation was not required. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated while on active duty. 38 U.S.C.A. § 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 pre-existing such service, was aggravated therein. 38 C.F.R. § 3.303(a) (1994). Each disabling condition shown by a veteran's service records, or for which he seeks service connection must be considered on the basis of the places, types and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records and all pertinent medical and lay evidence. Ibid. Determinations as to service connection will be based on review of the entire evidence of record, with due consideration to the policy of the Department of Veterans Affairs to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. Ibid. With chronic disease shown as such in service 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. 38 C.F.R. § 3.303(b) (1994). This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, etc., in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, etc., first shown as a clear-cut clinical entity, at some later date. Ibid. 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." Ibid. Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Ibid. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service discharge is required to support the claim. Ibid. Service connection may also 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) (1994). The Board finds the greater weight of the evidence to be against the appellant's claim seeking entitlement to service connection for disabilities of his right elbow, low back and left heel. An objective review of the medical evidence, both service and post service, does not support a finding of a chronic disability affecting the appellant's right elbow, low back and left heel. Notwithstanding the appellant's subjective complaints of pain and stiffness in these joints, clinical findings on examinations conducted in service and on VA compensation examination (VAX) in September 1990, were essentially negative for evidence of sustained disability. Although the record reflects that the appellant was treated in service for complaints of various injuries secondary to parachute jump training exercises, the results of physical evaluation on service discharge examination conducted in May 1990, were entirely negative for complaints, findings, diagnoses or manifestations of injuries to his right elbow, low back or left heel. It is significant to note that an x-ray study of his left heel taken May 1990, was negative for any abnormalities. Clinical findings on VAX in September 1990, which included orthopedic and general medical evaluations as well as review of x-ray studies taken in August 1990, similarly failed to show any residual disability of the appellant's right elbow, low back or left heel. The diagnostic impression noted on general medical examination was history of assorted bone and joint complaints, generally healthy 22 year old male. Diagnoses established on the basis of the orthopedic examination were mechanical low back pain and history of contusion injuries of the right elbow and left foot with residual pain, without objective or x-ray changes. VA outpatient treatment reports dated in 1990-92 reflect treatment for the above claimed conditions on one occasion in August 1990, at which time the aforementioned x-ray studies were taken. The Board has considered the appellant's contentions of record, which in essence reflect the present trouble he is having with his right elbow, low back and left foot; however, in this case, the Board assigns the greater probative value to the clinical findings made in service and on VAX conducted in September 1990. As indicated above, there is no objective medical evidence showing a chronic residual disability affecting these body parts. In order for a veteran to be awarded service connection for a disability, there must be evidence both of a service connected disease or injury and a present disability which is attributable to such disease or injury. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). Based on the foregoing, the Board is of the opinion that service connection for residual right elbow, low back and left heel disabilities, either as incurred in or aggravated by military service has not been established on the basis of the evidence of record, and therefore is not warranted in this case. The evidence in this case is not so evenly balanced so as to allow application of the benefit of the doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1994). ORDER An increased disability rating to 10 percent for a right thumb strain disability is granted, subject to the regulations controlling the payment of monetary benefits. Service connection for a right elbow, low back or left heel disability is denied. KENNETH R. ANDREWS, JR. 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.