BVA9508345 DOCKET NO. 90-26 326 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for cervical disc disease secondary to the service-connected residuals of a fracture of the left elbow with traumatic arthritis (minor). 2. Entitlement to an increased evaluation for residuals of a fracture of the left elbow with traumatic arthritis (minor), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Julia M. Kurtz, Associate Counsel INTRODUCTION The veteran served on active duty from July 1954 to July 1957. This matter originally came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a January 1990 rating decision of the Albuquerque, New Mexico, Regional Office (hereinafter RO) which denied an increased evaluation for residuals of a fracture of the left elbow. This case was previously before the Board in October 1990 and April 1992 when it was remanded for further development. This appeal also arises from a September 1993 rating decision of the RO which denied entitlement to service connection for cervical disc disease and neurologic impairment of the left arm as secondary to service-connected residuals of a fracture of the left elbow. In October 1994, the Board again remanded the case for further development. The veteran is represented in his appeal by Disabled American Veterans. The case is now ready for further appellate review. The appeal originally included the issue of service connection for neurologic impairment of the left arm as secondary to residuals of a fracture of the left elbow. However, the RO granted service connection for paresthesia's of the left olecranon in November 1994; as a notice of disagreement has not been filed, this issue is not properly before the Board for appellate review. See 38 C.F.R. § 20.200 (1994). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he is entitled to service connection for additional disabilities, specifically cervical disc disease, as secondary to his service-connected residuals of a fracture of the left elbow with traumatic arthritis. He also contends that he is entitled to an increased evaluation for his left elbow disability. He asserts that his disability is manifested by pain, difficulty gripping items with his hand, and the dropping of items. 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. 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 veteran's claim for entitlement to service connection for cervical disc disease as secondary to service- connected residuals of a fracture of the left elbow with traumatic arthritis is not well-grounded. It is also the decision of the Board that the preponderance of the evidence is against the veteran's claim for an evaluation in excess of 10 percent for residuals of a fracture of the left elbow with traumatic arthritis. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The claim for service connection for cervical disc disease as secondary to service-connected residuals of a fracture of the left elbow with traumatic arthritis is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 3. Fracture residuals of the left (minor) elbow are manifested by complaints of pain and traumatic arthritis. Limitation of flexion of the elbow to 90 degrees or limitation of extension of the elbow to 75 degrees has not been shown. 4. The case does not present such an exceptional or unusual disability picture so as to render impractical the regular schedular criteria. CONCLUSIONS OF LAW 1. The claim for service connection for cervical disc disease as secondary to service-connected residuals of a fracture of the left elbow with traumatic arthritis is not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159(a) (1994). 2. The schedular criteria for an evaluation in excess of 10 percent for residuals of a fracture of the left elbow with traumatic arthritis (minor) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321, Part 4, §§ 4.10, 4.40, Diagnostic Codes 5003, 5010, 5206, 5207 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, it is necessary to determine if the veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the Department of Veterans Affairs (VA) has properly assisted him in the development of his claims. A "well-grounded" claim is one which is not implausible. Our review of the record indicates that the veteran's claim with respect to an increased evaluation for residuals of a fracture of the left elbow with traumatic arthritis is plausible and that all relevant facts have been properly developed. However, for reasons discussed below, the veteran's claim for service connection for cervical disc disease as secondary to service- connected residuals of a fracture of the left elbow with traumatic arthritis is not well-grounded. I. History Service medical records reveal the veteran injured his left elbow in April 1955 while firing an AAA gun. In August 1956, he sought treatment for pain in the left elbow. An X-ray study of the left elbow dated in August 1956 showed a separate bony structure about the medial condyle of the humerus, which according to the history, represented an old fracture. The humeral, ulnar, and radial joints were not involved. The veteran was seen at the orthopedic clinic in September 1956 with complaints of mild pain along the course of the medial antebrachial cutaneous nerve. Upon physical examination, range of motion of the left upper extremity, elbow, was satisfactory. Pronation and supination were not affected. Extension and flexion were accompanied by crepitation palpable at the medial elbow joint line. There was an area of hyperesthesia along the medial joint line extending about 3 inches on the forearm and 3 inches proximally on to the arm. There was no evidence of ulnar nerve involvement and reflexes were within normal limits about the elbow. A comparison X-ray study of the right elbow revealed only the separation of the medial epicondyle on the left. The chief of orthopedic service indicated that there was evidence of new growth and did not believe that surgery would relieve the veteran's symptoms. The veteran again complained of pain in February and March 1957. His upper extremities were normal when examined for separation in June 1957. It was noted that the veteran was right handed. The veteran underwent a VA examination in February 1978. He complained of difficulty with his left hand and arm in that he frequently dropped objects and his arm would suddenly fall down when holding a newspaper or driving. He also stated that it ached with continued use. Upon physical examination, the veteran could move his fingertips to within 1.5 centimeters of the palmar crease. He had difficulty flexing his thumb adequately; extension of the left thumb backwards was 60 degrees as opposed to 90 degrees on the right. His grip was markedly decreased and reflexes were hyperactive on the left. There was a moderate intention tremor on the left and none on the right. There was no decrease in sensation or muscle activity. X-ray study of the left elbow showed a fracture with non-union of the medial epicondyle, and degenerative arthritis. There was no evidence of fracture of the left radius and ulna. The diagnosis was old fracture with nonunion left epicondyle with traumatic arthritis. Based upon the evidence of record, in March 1978, the RO granted service connection for residuals of a fracture of the left elbow with traumatic arthritis and assigned a 10 percent evaluation, effective from November 16, 1977. VA outpatient treatment note dated in November 1989 showed complaints of stiffness and increased pain in the left elbow and right wrist. The assessment was possible median neuropathy carpal tunnel syndrome and the veteran was referred for an electromyogram (EMG). In March 1990, the veteran underwent an EMG and nerve conduction studies in the left arm. It was noted that the EMG and nerve conduction studies in the left arm were entirely normal. A VA orthopedic examination was conducted in March 1991. The veteran complained of more and more problems holding things, beginning 4 years earlier. He stated that things drop out of his left hand and arm, when he holds things up with his arm, his arm drops from the shoulder, and that the painful area appeared to be in the ulnar nerve area distal down the forearm beginning at the elbow medially. He also complained of pains in the left shoulder and that his left thumb did not work well. On examination, the veteran had excellent muscles from the shoulder, upper arm, forearm and hand; there was no evidence of atrophy of any muscle groups. His grip was 0 left and 140 right, and 0 left and 0 right on two separate occasions, although both flexors and extensors were apparently working equally well. The veteran had extension of the left elbow to 0 degrees, flexion to 135 degrees with some discomfort, and full pronation and supination. The veteran was reluctant to move his shoulders, but when his arms were lifted and he recovered, the deltoid muscle appeared superb with no trace of atrophy. The only mild abnormality was a trace of fullness over the area of the medial epicondyle on the left. The ulnar nerves worked well. The veteran could not seem to extend his thumb or flex his thumb. X-rays showed moderate post traumatic degenerative changes in the left elbow with malunion and possible nonunion of the medial epicondyle. The diagnoses were post traumatic arthritis of the left elbow with malunion of the medial epicondyle and possible radial nerve problem resulting in inability to extend the thumb and with dysesthesia over the dorsal interosseus web. The ulnar and medial nerves appeared satisfactory with no atrophy, no regular or demonstrable changes in sensation and May 1990 neurology notes indicated normal muscle and nerve conduction in the median and ulnar nerve of the left arm. The examiner indicated that he was unable to explain the veteran's poor shoulder function, inability to move his left thumb and virtually zero grip. A medical statement from Myron G. Rosenbaum, M.D., indicates that he examined the veteran in May 1991. He noted the veteran displayed tenderness in the left trapezius, localized tenderness in the left biceps tendon and cuff tendons of the left shoulder, and fullness and tenderness of the left elbow, medially. The left elbow lacked 10 degrees extension and 30 degrees flexion. There was tenderness in the thumb flexor tendon of the left hand, and marked weakness of the flexion of the left fingers and thumb. The veteran measured 90 millimeters grip on the left and 200 millimeters grip on the right. Pronation of the left forearm lacked 10 degrees. Supination was full and sensation to pinprick normal. The diagnoses were old nonunited fracture of the epicondyle of the left elbow; complicating active gouty arthritis involving the entire extremity; marked weakness of the left hand, tendonitis of the left thumb; painful biceps tendonitis of the left shoulder with partial restriction of external rotation and abduction; and tendonitis of the cuff tendons over the humeral head. The veteran underwent a VA neurologic examination in August 1992. The veteran complained of pain, burning in nature, starting in the elbow and radiating up the triceps and into the neck, for the past three to four years. He denied prior back or neck injury. He stated that he believed his current problems were related to his fracture of the left elbow. Motor examination revealed give- way weakness in C6 and C7 myotomes. There was weakness in the thumb extensor, adductor and abductor. Sensation was decreased to pin prick in C5, C6 and C8 distribution. The impression was suspect cervical disc disease. In September 1992, the RO reclassified the veteran's left elbow disability as fracture of the left elbow with traumatic arthritis (minor) and continued the 10 percent evaluation. In September 1992, a magnetic resonance imaging (MRI) scan of the cervical area was conducted at a VA medical facility. The impression was possible slight disk protrusion C4-5, mild disk protrusion C5-6 left paramedian area with some narrowing of the left neural foramen and possible root compression at that level. A subsequent VA neurological examination was conducted in February 1993. Physical examination revealed full range of motion of the neck and hands. Palpation of the hands revealed tenderness over the right thumb area. The veteran had good grip on both sides. Forearm and arm muscles were normal in size and strength and muscle tone was normal on both sides. No tremors were noted. The veteran had no difficulty undressing himself. Sensory examination was intact to touch, pain, and temperature in both hands and forearms, bilaterally. Deep tendon reflexes were 2+ and equal at the biceps, triceps and brachioradialis jerk on the left, and 1+ on the same reflexes on the right. Deep tendon reflexes at the knees were 2+ and equal. The examiner noted the September 1992 MRI scan and that the veteran's radicular like symptoms appeared to occur on the left side. However, there did not appear to be anything present but dropped reflexes. The diagnosis was old wounds from the injury well healed, no focal tenderness at the wound site, full range of motion of the hands. At a VA neurological examination in July 1993, the examiner reviewed the veteran's claims file prior to examination. Physical examination revealed no obvious atrophy in any of the muscle groups in the veteran's left arm. Palpation of the olecranon on the left side elicited some paresthesia's, according to the veteran, that went from the elbow up to the shoulder and neck. No real pain was noted on movements of the elbow joint, wrist joint or fingers and full range of motion of the noted joints appeared intact. Motor examination revealed 5/5 strength in all muscle groups involving the left arm, including the hand, forearm, and upper arm. There was no atrophy or fasciculations noted, muscle tone was normal, and no tremors were present. Sensory examination revealed no loss of sensation to touch, temperature or vibratory sense on any nerve distribution, including the ulnar nerve on that side. Deep tendon reflexes were 1+ and symmetrical in the upper extremities. The impression was status post fracture of the left elbow in 1957. The examiner noted that the veteran did not appear to have any objective sensory or motor residuals but did have paresthesias emanating from palpation of the olecranon area in the elbow which, at times, may cause secondary problems which elicit a give-way type reflex. In November 1994, the neurological examiner of July 1993 again reviewed the veteran's claims file. He opined that the paresthesias of the left olecranon area in the elbow was, in all likelihood, related to the fracture of the medial epicondyle that occurred previously. However, he felt the paresthesias were extremely mild and should cause minimal discomfort to the veteran and noted the veteran had no objective motor or sensory loss in that nerve distribution. Based upon the evidence of record, in November 1994, the RO granted service connection for paristhesias of the left olecranon as secondary to the veteran's service- connected fracture of the left elbow with traumatic arthritis (minor) and assigned a noncompensable evaluation effective from December 14, 1989. II. Cervical Disc Disease as Secondary to Service-Connected Residuals of a Fracture of the Left Elbow As noted above, the veteran is service-connected for residuals of a fracture of the left elbow, rated 10 percent disabling. The veteran has asserted that he has developed other disabilities, specifically cervical disc disease, as secondary to his service- connected left elbow disorder. The United States Court of Veterans Appeals (hereinafter Court) has held that: A veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded. See 38 U.S.C.A. § 5107(a) (West 1991). See Tirpak v. Derwinski, 2 Vet.App. 609, 610-611 (1992). If a claim is not well-grounded, the Board does not have jurisdiction to adjudicate that claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). The Court has clarified that: Because a well-grounded claim is neither defined by the statute nor by the legislative history, it must be given a common sense construction. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 3007(a) [presently enacted as 38 U.S.C. § 5107(a) (1993)]. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). A grant of service connection is appropriate for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310 (1994). The veteran's contention involves a relationship between the veteran's service-connected left elbow disability and cervical disc disease. While the statements of the veteran are deemed credible, the Board notes that he does not have the medical competence to establish matters necessary to a showing that his cervical disc disease developed due to the left elbow disability. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). The Court has held that where the determinative issues involve medical causation or diagnosis, competent medical substantiation is required. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). The veteran has not provided any evidence by a medical expert as to the relationship between his cervical disc disease and the service-connected left elbow disability. Instead, he has simply asserted that such a relationship exists. This assertion is insufficient to establish a well-grounded claim, and nothing in the available medical records supports the veteran's assertion of such a relationship. As indicated earlier, under the provisions of 38 U.S.C.A. § 5107(a), the veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded or capable of substantiation. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159(a) (1993). Because there are no competent records in evidence that demonstrate that the veteran's claim is plausible or capable of substantiation, the Board finds that the veteran's claim is not well-grounded. III. Residuals of a Fracture of the Left Elbow With respect to the veteran's claim for an increased evaluation for residuals of a fracture of the left elbow, the Board points out that disability ratings are based, as far as practicable, upon the average impairment of earning resulting from the disability. 38 U.S.C.A. § 1155. The average impairment is set forth in the VA's Schedule for Rating Disabilities (hereinafter Schedule), codified in 38 C.F.R. Part 4 (1994), which includes diagnostic codes which represent particular disabilities. Traumatic arthritis, substantiated by X-ray findings, will be rated as degenerative arthritis. Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion for the specific joint involved. When the limitation of motion for the specific joint involved is noncompensable, a rating of 10 percent is for application for each such major joint affected by limitation of motion. Diagnostic Code 5003. Under Diagnostic Code 5206, a schedular rating greater than the 10 percent rating currently in effect is appropriate where there is limitation of flexion of the minor forearm to 90 degrees. Under Diagnostic Code 5207, a schedular rating greater than the 10 percent rating currently in effect is appropriate where there is limitation of extension of the minor forearm to 75 degrees. Although the veteran contends that his left elbow disability has increased in severity and that he merits a higher evaluation, the objective medical evidence does not support his contentions, and the Board finds that the negative evidence outweighs the positive. 38 U.S.C.A. § 7105(b) (West 1991). The disability of the veteran's left elbow is based on the residuals of a left elbow fracture and is rated according to the limitation of motion of the left elbow. The objective medical evidence showed full range of motion at the latest examinations. In May 1991, the veteran lacked 10 degrees of extension and 30 degrees of extension, however that limitation of motion does not provide for an evaluation greater than 10 percent under the Diagnostic Codes cited above. As the veteran complains of pain, the Board has also considered the provisions of 38 C.F.R. §§ 4.10 and 4.40 which contemplate functional impairment due to pain. However, the veteran's pain in the left arm, described as radiating from the elbow up the arm to the neck, was attributed to possible cervical disc disease in August 1992 which was confirmed by an MRI in September 1992. The Board has considered the potential application of various provisions of Title 38 of the Code of Federal Regulations (1994) whether or not they were raised by the veteran as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). In particular, the Board finds that the evidence does not suggest that the veteran's residuals of a fracture of the left elbow with traumatic arthritis presents such an exceptional or unusual disability picture as to render impractical the applicability of the regular schedular standard and thereby warrant the assignment of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) (1994). For example, the disability has not required frequent periods of hospitalization, nor has been shown to present marked interference with employment. ORDER The appeal based on a claim for service connection for cervical disc disease as secondary to service-connected residuals of a fracture of the left elbow is dismissed. An increased evaluation for residuals of a fracture of the left elbow is denied. U. R. POWELL 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.