Citation Nr: 0006134 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 98-00 530A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for an umbilical hernia. 2. Entitlement to an initial rating in excess of 20 percent for residuals of a right ankle injury. WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran had active service from March 1946 to April 1947, from December 1947 to November 1949 and from December 1950 to November 1953. This matter came to the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In November 1998, the veteran testified at a videoconference hearing before the undersigned Acting Member of the Board. The case was returned to the RO for additional development, and it is now before the Board for further appellate consideration. FINDINGS OF FACT 1. The claim for service connection for an umbilical hernia is not plausible. 2. Prior to October 29, 1999, the veteran's residuals of a right ankle injury were manifested primarily by restricted ankle movement, slight swelling and pain on walking. 3. Since October 29, 1999, the veteran's residuals of a right ankle injury have been manifested primarily by marked limitation of ankle motion, chronic pain and swelling and additional functional loss during flare-ups as well as incoordination, weakened movement and excess fatigability on use. CONCLUSIONS OF LAW 1. The claim for service connection for an umbilical hernia is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for a rating in excess of 20 percent for residuals of a right ankle injury were not met prior to October 29, 1999. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5270, 5271 (1999). 3. Commencing October 29, 1999, the criteria for a 30 percent rating for residuals of a right ankle injury were met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5003, 5010, 5270, 5271 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Umbilical Hernia The veteran contends that he entered service with a congenital deformity evidenced by protrusion of his navel, and he argues that the strenuous activities of service aggravated the condition and resulted in his umbilical hernia. Applicable law provides that service connection may be granted for disability resulting from disease or injury incurred or aggravated during service. 38 U.S.C.A. §§ 1110, 1131, 1153 (West 1991); 38 C.F.R. §§ 3.303, 3.306 (1999). Service connection may also be established for disease first diagnosed after discharge from service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a preliminary matter, the Board must determine whether the veteran has presented evidence of a well-grounded claim, that is, whether he has presented a claim that is plausible and meritorious on its own or capable of substantiation. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990); Grottveit v. Brown, 5 Vet. App. 91 (1993); Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The United States Court of Appeals for Veterans Claims (Court) has stated repeatedly that 38 U.S.C.A. § 5107(a) unequivocally places an initial burden on a claimant to produce evidence that a claim is well grounded. See Grivois v. Brown, 6 Vet. App. 136 (1994); Grottveit at 92; Tirpak at 610-11. To satisfy the burden of establishing a well- grounded claim for direct service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence 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. Where the determinative issue involves medical causation or diagnosis, competent medical evidence to the effect that the claim is plausible is required. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997). A claim also may be well grounded if the condition is observed during service, continuity of symptomatology is demonstrated thereafter and competent evidence relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 497 (1997). If the veteran has not submitted evidence of a well-grounded claim, the claim must fail, and VA has no duty to assist the veteran in the development of the claim, including providing a medical examination and opinion. See Epps, supra; Caluza v. Brown, 7 Vet. App. 498, 504 (1995). The veteran's service medical records include no reference to protrusion of the veteran's navel, nor do they mention the presence of an umbilical hernia. VA outpatient records dated from 1991 to 1999 show that an umbilical hernia was found at the veteran's initial examination in January 1991 and that it was mentioned in later progress notes, including in March 1995. At an outpatient visit in September 1997, the veteran said he had an "umbilical rupture" and gave a history of an umbilical hernia for 20 years. On examination, the physician noted an umbilical hernia, which was easily reduced. At the November 1998 hearing, the veteran testified that protrusion of his navel was noted in service at Fort Belvoir in 1946 when he went on sick call. He testified the doctor told him that if he ever had a sharp pain in that area, he should go to a hospital emergency room to seen whether there was blockage in the colon. He testified that he was not seen again about this condition because he never had a pain that sent him to the emergency room. The veteran also testified that he received medical care at a city clinic in Chicago from 1979 to 1990 and he was told by a doctor there that he should go to an emergency hospital promptly if he got a pain in the area of his hernia. The RO attempted to obtain the veteran's medical records from the clinic, but the medical records department of the Chicago Department of Public Health reported they could find no record of the veteran. Upon review of the evidence, the Board finds that the veteran's claim for service connection for an umbilical hernia is not plausible. Even accepting as credible the veteran's testimony that there was protrusion of his navel in service, there is no medical evidence of the presence of an umbilical hernia until many years after service, and there is no medical evidence suggesting that the umbilical hernia is etiologically related to service. The Board acknowledges that the veteran has testified that a physician in service advised him to seek treatment if he experienced pain in the area of his navel and that a doctor many years after service advised him to seek medical treatment if he got pain in the area of his umbilical hernia. There is, however, no medical evidence corroborating his statements regarding his in- service and post-service conditions. The Court has held that the connection between what a physician said and a layman's account of what he purportedly said, filtered through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute medical evidence. Robinette v. Brown, 8 Vet. App. 69, 77 (1995). The Board is left with the veteran's assertions regarding etiology and aggravation of the claimed disability. However, the veteran, as a lay person, is not competent to furnish medical opinions or diagnoses. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). With a claim such as this, where the determinative issue involves medical opinions as to etiology and aggravation, competent medical evidence is required to fulfill the well-grounded claim requirement of 38 U.S.C.A. § 5107(a). See Heuer v. Brown, 7 Vet. App. 379, 384 (1995). Because the veteran cannot meet his initial burden by relying on his own opinions and he has submitted no cognizable evidence to support his claim, the claim for service connection for an umbilical hernia is not well grounded and must be denied. Rating for residuals of right ankle injury In its November 1997 rating decision, the RO granted service connection for residuals of a right ankle injury and assigned a 10 percent rating effective from the date of receipt of the veteran's claim in April 1997. The veteran disagreed with the 10 percent rating. Following the November 1998 hearing, the case was returned to the RO for further development, and in a rating decision dated in December 1999 the RO increased the rating to 20 percent, effective from April 1997. The veteran continued his appeal. The Board finds the claim to be well grounded within the meaning of 38 U.S.C.A. § 5107(a). Additionally, the facts relevant to this claim have been properly developed, and the statutory obligation of VA to assist in the development of the claim has been satisfied. With respect to whether the veteran is entitled to a higher disability rating for at least part of the original rating period following the grant of service connection for residuals of a right ankle injury, the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994) (where entitlement to compensation has already been established and an increased in disability rating is at issue, present level of disability is of primary importance) is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the residuals of the veteran's right ankle injury. The Board has found nothing in the historical record that would lead to the 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 remote clinical histories and findings pertaining to this disability. Briefly, service medical records show that the veteran injured his right ankle in a fall from a truck in October 1953 in France. The original diagnosis was a fracture and a cast was applied. The veteran was returned to the United States, and was then hospitalized with pain from the cast. X-rays at that time showed no fracture. The ankle was recasted, and the final diagnosis was sprain, right ankle. VA outpatient records show that when the veteran was seen in August 1991 for follow-up concerning diabetes mellitus and hypertension, it was noted that he walked 2 miles a day. At a VA orthopedic examination in June 1997, the veteran complained of slight pain in the right ankle after walking several blocks, and he reported there was mild soft tissue swelling at times. On examination of the right ankle, there was very mild swelling over the lateral malleolus. There was plantar flexion to 40 degrees and dorsiflexion to 10 degrees. There was pronation to 10 degrees and supination to 15 degrees. The physician stated there was no pain with range of motion studies, and there was no pain to palpation. A radiologist noted soft tissue swelling around the ankle on X-rays taken in June 1997. The physician who conducted the clinical examination also reviewed the X-rays and noted some mild arthritic changes in the medial ankle. His diagnosis was status post right ankle fracture with some post-fracture arthritic discomfort. A VA progress note dated in September 1997 shows the veteran complained of ankle pain, and the physician ordered Naprosyn for pain. In January 1998, the veteran reported the pain was controlled with Naprosyn. On examination, the physician noted 2+ pitting edema. At an April 1998 visit for follow-up secondary to starting verapamil for hypertension, the veteran reported that he got minimal exercise because of ankle pain, which was unchanged. When seen for medication refills in October 1998, the veteran complained of right ankle pain. Later that month he reported that his exercise consisted of some walking. Examination revealed 2+ pitting edema, which the examiner noted was old since verapamil had been initiated. At the November 1998 hearing, the veteran testified that Naprosyn dulled his ankle pain. He said that while sitting in his apartment he had no problem with his ankle. He testified that when he left the apartment and walked, his ankle became painful. He said that after he walked about two blocks, he felt the pain. He testified that he had no problems with his right ankle other than walking. VA outpatient records show that when he was seen for follow- up in April 1999, the veteran complained of chronic ankle pain. The physician stated that examination was benign except for 2+ pitting edema, which had been present since verapamil was started. At a VA orthopedic examination in October 1999, the veteran complained of right ankle pain, which he said was continuous with walking. He said that he could walk up to one block and then had to rest for 15 minutes before he could start walking again. He reported continuous swelling of both ankles. The veteran said that he hardly went outside at all due to the ankle pain, but that when the weather got cold, he had aching in the right ankle. On examination in October l999, the physician noted that the veteran walked with a slight limp on the right leg. He was unable to stand well on the right leg due to pain, indicating the lateral and medial areas of the ankle. He was unable to stand well or squat well on the right. The pain was severe in degree compared to 1997, when there was just slight pain. There appeared to be swelling of both ankles, more on the right. There was pronation of the right ankle to 5 degrees with pain, 0 degrees without pain, and there was supination of 10 degrees with pain, 5 degrees without pain. There was dorsiflexion to 5 degrees with pain, 0 degrees without pain. There was plantar flexion to 30 degrees, limited by weakened movement at 20 degrees. Repeated motion to moderate flexion and extension resistance caused both weakened movement and excess fatigability with plantar flexion of 20 degrees and dorsiflexion of 5 degrees. The physician said weather changes (flare-ups) caused pain with limitation of range of motion decreased 5 degrees further in all directions. Incoordination occurred at 15 degrees of plantar flexion, but not with dorsiflexion. The diagnosis at the VA examination in October 1999 was fracture, right ankle, with traumatic arthritis; pain on walking 1 block; pain, fatigue, weakened resistance to cold weather changes in spite of veteran being inside the house, not outside; limitation of ranges of motion, moderate resistance to plantar flexion and dorsiflexion; and chronic swelling of the right ankle. The physician noted that on right ankle X-rays fibular fracture healing appeared not totally solid and there was tissue swelling consistent with history. The physician stated it was his opinion that the right ankle condition limited the veteran from walking more than a block without stopping and limited him from climbing a full flight of stairs. He also said that the veteran could not stand for periods greater than 10 minutes at a time. The physician stated that although the ankle condition was severe and limited the veteran's employability to desk or sitting jobs, it was his opinion that the right ankle disability did not render the veteran unemployable. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service- connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1999). When there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Under 38 C.F.R. § 4.71a, Diagnostic Code 5010, arthritis due to trauma and substantiated by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purpose of rating disability from arthritis, each ankle is considered a major joint. 38 C.F.R. § 4.45(f). Ankylosis of the ankle in plantar flexion at less than 30 degrees warrants a 20 percent rating. A 30 percent rating is warranted if the ankylosis is in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees. A 40 percent rating is warranted if there is ankylosis of the ankle in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. Diagnostic Code 5271 provides for a 10 percent rating for moderate limitation of motion of the ankle and a 20 percent rating for marked limitation of motion of the ankle. 38 C.F.R. § 4.41a, Diagnostic Code 5271. Normal range of ankle motion is dorsiflexion to 20 degrees and plantar flexion to 45 degrees. 38 C.F.R. § 4.71, Plate II (1999). Based on the medical evidence on file and the veteran's hearing testimony, the Board concludes that a rating in excess of 20 percent for residuals of the veteran's right ankle injury is not warranted piror to October 29, 1999. In the period prior to that date, the right ankle injury residuals were manifested primarily by arthritis with restricted ankle movement, slight swelling and pain on walking. At that time, the veteran could walk several blocks before the onset of the right ankle pain, and plantar flexion was nearly complete while the veteran could dorsiflex the right ankle to half the normal range. The Board concludes, therefore, that for the period prior to October 29, 1999, the disability warranted no more than the currently assigned 20 percent rating. There was no indication of weakness, incoordination or excess fatigability on use, and even with consideration of 38 C.F.R. §4.40, 4.45 and 4.59, the degree of limitation of motion and the presence of swelling and pain on use do not, in the Board's opinion, meet or more nearly approximate the criteria for a 30 percent rating under any potentially applicable diagnostic code. The VA examination report of October 29, 1999, documents worsening of the veteran's right ankle disability and showed it to be manifested primarily by marked limitation of ankle motion, chronic pain and swelling. Further, the physician found additional functional loss during flare-ups with weather change, as well as incoordination, weakened movement and excess fatigability on use. With consideration of 38 C.F.R. §§ 4.40, 4.45 and 4.59, the Board concludes that a 30 percent rating is warranted under Diagnostic Code 5270 commencing October 29, 1999. However, in view of the retained right ankle motion with the ability to walk up to a block without rest, and the absence of abduction, adduction, inversion or eversion deformity of the ankle, the Board concludes that the limitation of motion does not more nearly approximate the criteria for a 40 percent rating under Diagnostic Code 5270. The Board has also considered whether there should be referral to the Director of the Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(b)(1) (1999). There is no evidence that the veteran has been hospitalized due to his service-connected right ankle disability. Further, the manifestations of the disability to which the veteran testified at his hearing and which have been documented in the medical evidence are consistent with the assigned ratings, and, in the Board's judgment, the record does not indicate that the average industrial impairment resulting from the veteran's residuals of a right ankle injury would be in excess of that contemplated by the assigned evaluation for each period. Therefore, the Board finds that the criteria for submission for assignment of extra-schedular ratings pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Service connection for an umbilical hernia is denied. A rating in excess of 20 percent for residuals of a right ankle injury prior to October 29, 1999, is denied. A 30 percent rating for residuals of a right ankle injury is granted from October 29, 1999, subject to the applicable criteria governing the payment of monetary benefits. NANCY S. KETTELLE Acting Member, Board of Veterans' Appeals