BVA9501993 DOCKET NO. 91-46 131 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an increased (compensable) rating for a bilateral foot disability. 2. Entitlement to an increased (compensable) rating for a recurrent ganglion cyst of the right foot. 3. Entitlement to an increased (compensable) rating for lumbosacral strain. 4. Entitlement to an increased (compensable) rating for right shoulder brachioplexitis. REPRESENTATION Appellant represented by: Noncommissioned Officers Association of the U.S.A. ATTORNEY FOR THE BOARD Mark J. Swiatek, Counsel INTRODUCTION The veteran served on active duty from October 1976 to October 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In February 1992 and March 1993, the Board remanded the case for further development. In August 1994, the case was returned to the Board for further appellate consideration. CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that the disabilities at issue are more disabling than recognized by the disability evaluations now in effect. He asserts that he has muscle cramps and pain of the right shoulder and sensory change in the right upper extremity. He contends that he experiences severe right foot pain, and pain at the site of the cyst removal. Further, he has had problems in the right lower back since his injury. 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 appellant's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that a preponderance of the evidence is against increased ratings for the veteran's bilateral foot disability, lumbosacral strain and right shoulder brachioplexitis, and that it supports an increased rating for postoperative residuals, recurrent ganglion cyst of the right foot. FINDINGS OF FACT 1. The bilateral foot disability is currently manifested by no more than mild symptoms that are alleviated with the use of arch supports. 2. The postoperative residuals, recurrent ganglion cyst of the right foot are principally manifested by a well healed scar on the dorsum of the foot and a complaint of occasional pain; the scar is tender to deep palpation. 3. Lumbosacral strain is principally manifested by slight subjective symptoms. 4. The right shoulder brachioplexitis is manifested principally by complaints of pain; no neurologic disability has been objectively confirmed and no functional disability has been objectively demonstrated. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for a bilateral foot disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.71a, Diagnostic Code 5276 (1993). 2. The criteria for a 10 percent rating for a recurrent ganglion cyst of the right foot have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804 (1993). 3. The criteria for a compensable rating for lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.71a, Diagnostic Code 5295 (1993). 4. The criteria for a compensable rating for right shoulder brachioplexitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.31, 4.7, 4.71a, Diagnostic Codes 5201, 8510 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that, in general, an allegation of increased disability is sufficient to establish as well-grounded a claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board is also satisfied that all relevant facts have been properly developed with respect to the disabilities at issue and that no further assistance to the appellant is required in order to comply with the VA's duty to assist mandated by 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 (1993) and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of his service-connected disabilities at issue, and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule) 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from diseases or injuries incurred or aggravated during military service and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1993). The service-connected bilateral foot disability is rated as pes planus with plantar fasciitis. Under the provisions of the Rating Schedule, symptoms relieved by a built up shoe or arch supports are deemed "mild" and considered to be noncompensably disabling. A disability manifested by a weight bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet is described as "moderate" and considered 10 percent disabling. 38 C.F.R. Part 4, Code 5276. The March 1992 and November 1993 VA examinations provide thorough evaluations of the feet. After review of the findings, the Board concludes that the noncompensable evaluation is appropriate at this time. Neither examination revealed limitation of motion, nor was pain reported. No deformity, edema or tenderness was observed and the X-ray on the latter evaluation was interpreted as showing no significant pes planus. After the most recent examination, the examiner reported no significant pes planus but that the veteran felt better with arch supports. Clearly, a level of disability contemplated for a 10 percent evaluation has not been observed on either of the comprehensive examinations. As for the ganglion cyst residuals, the Rating Schedule, provides a 10 percent rating for superficial scars which are tender and painful on objective demonstration, or poorly nourished, with repeated ulceration. Alternatively, a rating may be assigned where such scars produce limitation of function of the body part which they affect. 38 C.F.R. § 4.118, Codes 7803, 7804 and 7805. In this case, a rating for other foot disabilities would allow for a 10 percent evaluation for "moderate" disability. 38 C.F.R. § 4.71a, Code 5284 (1993). All VA examinations have addressed the right foot ganglion cyst residuals. The surgical scar located on the dorsum of the right foot is well healed and no functional impairment of the right foot related to the scar has been confirmed. On examination, it has been functionally and radiographically normal. However, the Board observes that on the January 1991 examination, the veteran complained that the scar caused him some pain when he squated. In March 1992, he mentioned pain radiating to the right little toe. Objectively, the scar was found to be mildly tender to deep palpation on the November 1993 VA examination. Further, the veteran described the pain as sharp, though only occasional. The combination of confirmed tenderness of the scar and the veteran's complaint of occasional, sharp pain, in the Board's judgment, more nearly approximates the level of impairment required for the 10 percent evaluation under Code 7804. Accordingly, a 10 percent rating is in order. 38 C.F.R. § 4.7. Concerning lumbosacral strain, the Rating Schedule, provides a 10 percent rating for characteristic pain on motion. Slight, subjective symptoms are considered to be noncompensable. 38 C.F.R. § 4.71a, Code 5295. The record reflects that a normal range of motion was reported on the January 1991 VA examination, and on several evaluations during 1992 performed by Vaughn S. Miller, D.C., which also report the complaint of pain. On reexamination by the VA in November 1993, the orthopedic and neurologic examiners did not report any limitation of motion, vertebral tenderness or muscle spasm or positive findings during straight leg raising. The orthopedic examiner reported increased back pain on the right side with extension of the lumbar spine, but that flexion was accomplished without complaint of pain. The neurologic examiner did not report pain with either active or passive movement of the spine and found no vertebral tenderness. Overall, the currently demonstrated symptoms of lumbosacral strain appear to be fully contemplated in the noncompensable rating. The orthopedic examiner concluded that no physical findings were present to objectively confirm the lumbosacral complaints. And, the neurologic examiner did not report any findings to question that assessment. Regarding the right shoulder brachioplexitis, the Board observes that a full range of motion was reported on the January 1991 VA examination. The reports received from Dr. Miller refer to complaints of pain in 1991 and 1992. Stefan E.J. Cesarz, D.C., reported that in July 1992, the veteran had tenderness of the acromioclavicular joint and lacked fluid motion. The deep tendon reflexes were two plus for the upper extremities. His diagnosis included brachial radiculitis and Grade I acromioclavicular joint dislocation. On reexamination by the VA in November 1993, the orthopedic examiner reported full range of motion with grinding of the right shoulder on active motion and mild tenderness over the front of the shoulder just below the scapula. The X-ray was interpreted as showing a possible very mild acromioclavicular joint subluxation. The diagnosis was right shoulder chronic bursitis/mild impingement. The neurologist reported 5/5 motor examination findings for the upper extremities with normal tone and no signs of atrophy or fasciculations. The muscle stretch reflexes were 2/4 in the biceps, triceps and brachioradialis. A peripheral sensory loss of approximately 20 percent to vibration and cold in the hands and feet was reported. After review of this evidence, the Board finds that objectively, the veteran does not demonstrate symptoms to allow for a compensable rating. The Board observes that VA examinations prior to and subsequent to those of Dr. Miller and Dr. Cesarz did not demonstrate any limitation of function for the right shoulder to support a compensable rating on that basis. The various provisions in the Rating Schedule for disability of the shoulder and arm require at a minimum for a compensable evaluation demonstrable limitation of motion or other functional impairment not objectively confirmed in this case. 38 C.F.R. § 4.71a, Codes 5200-5203 (1993). Further, no complaint of pain was reported by the VA examiners. Neither was any neurologic disability related to the right should observed to allow, in the alternative, for a compensable rating on that basis. 38 C.F.R. §38 C.F.R. §§ 4.31, 4.59. 4.124a, Code 8510 (1993). The Board has considered the provisions of 38 C.F.R. § 4.7 with respect to the disabilities at issue. Finally, the Board notes that no unusual or exceptional disability factors warranting extraschedular consideration have been presented. 38 C.F.R. § 3.321(b)(1). ORDER 1. An increased rating for a bilateral foot disability is denied. 2. An increased rating of 10 percent for a recurrent ganglion cyst of the right foot is granted, subject to the applicable criteria governing the payment of monetary benefits. 3. An increased rating for lumbosacral strain is denied 4. An increased rating for right shoulder brachioplexitis is denied. _________________________ ROBERT E. SULLIVAN 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. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993). REMAND Having determined that the veteran's claim of entitlement to service connection of a cervical spine disability has been reopened, the RO must evaluate the merits of the claim in light of all the evidence, both new and old. Manio v. Derwinski, 1 Vet.App. 140, 146 (1991). Regarding the cervical spine, the Board observes that neither VA examination has included radiographic examination. The records received from Dr. Miller and Dr. Cesarz refer to X-ray evaluations in connection with their treatment. Dr. Miller's records show an initial X-ray of the cervical spine in April 1989 which was during the veteran's active service. Regarding the evaluation of the service-connected right shoulder brachioplexitis, the Board observes that the VA orthopedic and neurologic examinations obtained in November 1993 included inconsistent findings. For example, the orthopedic examiner reported symptoms of cervical spondylosis with no radicular findings and right shoulder chronic bursitis/mild impingement. However, the neurologic examiner reported a peripheral sensory loss of approximately 20 percent to vibration and cold in the hands and feet. The impressions were musculoskeletal injury of both the cervical and lumbar regions and peripheral neuropathy. The etiology of the peripheral neuropathy was not discussed in the examiner's report. Further, Dr. Cesarz had reported a moderate brachial radiculitis on a July 1992 evaluation. The Board also observes that the veteran reported to the orthopedic examiner that he received arch supports through Fort Knox. The record of any medical treatment provided at that facility has been obtained. The United States Court of Veterans Appeals has held that the duty to assist includes the duty to obtain thorough and contemporaneous VA examinations, including examinations by specialists, where indicated, and to obtain pertinent medical evidence to which the veteran has referred. Where the record before the Board is inadequate to render a fully informed decision on an issue, a remand to the RO is required in order to fulfill the statutory duty to assist. See Ascherl v. Brown, 4 Vet.App. 371, 377 (1993). In view of the foregoing, the Board concludes that further development, specified below, is required. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for a right shoulder disorder, cervical spine disorder, a disability of the feet, lumbar spine and ganglion cyst residuals of the right foot since his separation from active service. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran which are not currently of record. This should include any pertinent records from the medical facility at Fort Knox, Kentucky, relating to treatment since his separation from active service in 1990, and any available X-rays of the cervical spine obtained by Dr. Miller and Dr. Cesarz in treating the veteran. All such records should be associated with the claims folder. 2. Thereafter, the veteran should be afforded a VA examination by a board-certified orthopedist and neurologist, if available, to determine the current severity of his cervical spine disability, bilateral foot disability, residuals of a ganglion cyst of the right foot, lumbosacral strain and right shoulder brachioplexitis. The appropriate electrodiagnostic and X-ray studies must be obtained. The examiners are requested to review the claims folder and provide an opinion regarding the etiology of any neurological symptoms and whether d and whether it is at least as likely as not that the neurological symptoms are a part of a service-connected disability. The examiner's are also requested to express an opinion as to the etiologic significance, if any, of he neck complaints at various times during service and any cervical spine disability currently found. A complete rationale should be given for all opinions and conclusions expressed. 3. Then, in light of the additional evidence obtained pursuant to the requested development, the RO should readjudicate the issues on appeal. The RO should also adjudicate the issue of service connection for a cervical spine disability on a de novo basis without regard to the finality of the prior RO decision. If any benefit sought on appeal is not granted to the satisfaction of the veteran, or if a timely Notice of Disagreement is received with respect to any other matter, a Supplemental Statement of the Case should be issued, and the veteran and his representative provided an opportunity to respond. Thereafter, the case should be returned to the Board for further consideration, if otherwise in order. By this REMAND, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The appellant's claim for service connection for a cervical spine disability was denied by the RO in March 1991 and, following notification of the determination in April 1991, the appellant did not perfect an appeal. The March 1991 RO decision therefore became final based on the evidence then of record. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302 (1993). New and material evidence is required to reopen the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Manio v. Derwinski, 1 Vet.App. 140 (1991). In determining if new and material evidence has been submitted, the Board is required to review all of the evidence submitted by a claimant since the last final denial on the merits in order to determine whether a claim must be reopened and readjudicated on the merits. Glynn v. Brown, 6 Vet.App. 523 (1994). The Board's decision to accept jurisdiction of the issue is based upon a review of the veteran's May 1993 correspondence regarding neck complaints and medical evidence received thereafter. After a careful review of the record, the Board finds that the evidence received since the March 1991 RO decision is new as it is neither cumulative nor redundant, and material because it is relevant and probative and, when considered in conjunction with the evidence previously of record, raises a reasonable possibility of an outcome different from that reached by the RO in March 1991. Colvin v. Derwinski, 1 Vet.App. 171 (1991). Evidence that was of record at the time of the March 1991 rating decision shows that during service the veteran was seen in October 1978 with complaints of neck and shoulder pain. Tension of the neck and shoulders was observed. The assessment was back tension. In June 1985, a clinical history of a previous back and right shoulder injury was reported. An examiner reported complaints that included right arm numbness and neck pain. A cervical spine X-ray was interpreted as showing good alignment, without visible degenerative change. A cervical spine X-ray obtained in February 1987 to rule out radiculopathy was interpreted as showing no significant abnormalities. January 1989 and January 1990 clinical record entries refer to a history of cervical radiculopathy and an impression of cervical spondylosis, respectively. A March 1990 cervical spine X-ray was interpreted as normal. A May 1990 physical profile record lists "Neck DJD". The disabilities listed on an August 1990 Medical Board included cervical spine strain. The veteran provided a history of an injury playing soccer when he fell on his right shoulder and neck. The September 1990 Physical Evaluation Board report refers to the disorder as not disabling and therefore not rated. The record of medical treatment following service consisted of a January 1991 VA medical examination. The veteran reported that he had pain from the shoulder to his neck. The neck was described as nontender with a full range of motion. No X-ray of the cervical spine was obtained. The examining physician did not report a diagnosis for the cervical spine. Evidence received since the March 1991 rating decision includes private medical treatment records and VA medical examination reports. The records received from Vaughn S. Miller, D.C., show treatment from April 1989 to June 1992. In a June 1993 statement, he reported that the veteran had been treated for subluxations of the first and fifth cervical and thoracic vertebrae, and the sacrum. In August 1993, Stefan E.J. Cesarz, D.C., reported the findings made during the veteran's initial evaluation in July 1992. The clinical history referred to a 1985 injury of the neck area and right shoulder with continuing discomfort. The radiographic impressions included mild degenerative joint disease of the cervical spine. The diagnosis was acute exacerbation of chronic acromioclavicular joint sprain/strain with Grade I dislocation and moderate cervical sprain/strain with resultant moderate brachial radiculitis and concurrent cervical subluxation complex with mild cervical spine spondylosis. In November 1993, the veteran received VA orthopedic and neurologic examinations. The pertinent impression of the examining orthopedist was symptoms of cervical spondylosis with no radicular findings. The neurologist's impressions were musculoskeletal injury of both the cervical and lumbar regions and peripheral neuropathy. Although the evidence added to the record since the March 1991 rating decision does not include confirmation of cervical spine strain reported in service, or conclusively demonstrate that any cervical spine disability reported is related to an injury in service, it is relevant and probative of the issue of service connection for a cervical spine disability and presents a reasonable possibility of a different outcome when considered in light of all the evidence. Accordingly, the claim for service connection for a cervical spine disability must be reopened.