Citation Nr: 0005862 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 97-06 839A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for a stomach disability. 2. Entitlement to service connection for hearing loss. 3. Entitlement to an increased rating for residuals of left navicular fracture, currently evaluated as 10 percent disabling. 4. Whether new and material evidence has been presented to reopen the veteran's claim for service connection for a left elbow disability. 5. Whether new and material evidence has been presented to reopen the veteran's claim for service connection for a right elbow disability. 6. Whether new and material evidence has been presented to reopen the veteran's claim for service connection for a right shoulder disability. 7. Whether new and material evidence has been presented to reopen the veteran's claim for service connection for a left shoulder disability. 8. Whether new and material evidence has been presented to reopen the veteran's claim for service connection for a right wrist disability. 9. Whether new and material evidence has been presented to reopen the veteran's claim for service connection for status post septoplasty for nasal septal deformity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Hickey, Counsel INTRODUCTION The veteran had active service from November 1975 to August 1985. This appeal to the Board of Veterans' Appeals (Board) arises from the November 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for residuals of left navicular chip fracture, evaluated as noncompensably disabling, and denied service connection for a stomach disorder, bilateral knee conditions, and hearing loss. The November 1996 decision also denied the veteran's application to reopen his claims for service connection for left and right elbow conditions, right shoulder myositis, the residuals of a left shoulder injury, the residuals of a right wrist injury, and status post septoplasty for nasal septal deformity. In December 1996 the veteran filed a notice of disagreement with regard to all issues except the denial of service connection for bilateral knee conditions. A statement of the case was issued in February 1997, and the veteran filed a substantive appeal in March 1997. In January 1999 the RO assigned a 10 percent evaluation for residuals of left navicular fracture. It is further noted that the veteran submitted a timely notice of disagreement with regard to the denial of service connection for bilateral knee conditions in April 1997. The issue was addressed in the January 1999 supplemental statement of the case, and the veteran was notified by letter dated February 1, 1999, of the necessity of filing a substantive appeal within 60 days, in order to perfect his appeal of any issue which was not addressed in his previous substantive appeal. Although an appeal to the Board is initiated by filing a notice of disagreement, the appeal is completed by filing a substantive appeal after a statement of the case is issued. 38 U.S.C.A. § 7105(a) (West 1991); 38 C.F.R. §§ 20.200, 20.201, 20.202 (1999). The record does not reflect that a timely substantive appeal was filed with regard to the issue of service connection for bilateral knee conditions. Therefore, the veteran has not perfected his appeal of that issue, which is not before the Board for appellate review. 38 C.F.R. § 20.200 (1999). FINDINGS OF FACT 1. The record does not present competent evidence of a medical nexus between a current digestive disorder and active service. 2. The record does not present competent evidence of hearing loss disability. 3. Residuals of left navicular fracture are manifested by subjective reports of pain associated with cold weather, with clinical findings of full left wrist range of motion, no associated tenderness, and strong grasp, and radiographic findings of well healed bone, with no significant soft tissue swelling and no evidence for avascular necrosis. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim for service connection for a stomach disability. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1999). 2. The veteran has not submitted a well-grounded claim for service connection for hearing loss disability. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.385 (1999). 3. Residuals of left navicular fracture are not more than 10 percent disabling in accordance with the applicable schedular. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59 and 4.71a, Codes 5214 and 5215 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background Service medical records dated in October 1976 to March 1982 reflect that the veteran was treated on multiple occasions for symptoms referable to the digestive system, which were most often assessed as gastroenteritis. In October 1980 an upper gastrointestinal series with small bowel follow through was conducted which revealed that the esophagus, stomach and duodenal bulb were normal with no abnormalities noted in the jejunum through the ileum. On physical examination in March 1982 no abnormalities of the abdomen or viscera were noted on clinical evaluation and x-rays. In May 1985 the veteran injured his left wrist in a fall. X-rays were interpreted to reveal an avulsion fracture of the tubercle of the navicular bone. Treatment involved a thumb spica cast. When the veteran was seen for orthopedic consultation later in May 1985 there was no pain on palpation over the fracture site. In June 1985 it was noted that x-rays disclosed healed fracture. There was no pain on palpation or range of motion of the left thumb at that time. On the authorized audiological evaluation at the time of entry into active service in 1975 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 0 - 5 LEFT 25 10 5 - 15 Additional audiograms conducted during service reflect an overall increase in the auditory thresholds levels at all Hertz frequencies. In March 1981 the veteran was seen with complaints of right ear hearing loss of three days duration. The assessment was bilateral otitis media. On the authorized audiological evaluation in March 1982 pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 5 15 25 LEFT 30 15 5 15 25 The latest audiological evaluation which is of record was conducted in May 1984. At that time pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 15 5 35 35 LEFT 25 10 15 30 30 The May 1984 evaluation report also reflects that the auditory thresholds at all but one frequency, reflected an increase over the data recorded on a reference audiogram in December 1982. Of record are private medical records which reflect that when the veteran was seen with chest pain in July 1988, an upper gastrointestinal series and kidneys, urethra and bladder, revealed no abnormalities in the esophagus, stomach, duodenal bulb and duodenal C-loop. An oral cholecystogram conducted in September 1988 also was normal. A private hospital report dated in September 1992 reflects that the veteran presented with a sudden onset of severe epigastric, lower substernal chest pain, which was constant and sharp in nature. It was noted that he had been seen in the emergency room in August 1992 with similar problems and he had had approximately five attacks since that time. The veteran gave a history of similar symptoms, with some gas or bloating, occurring approximately once a month, for 15 years. There was no associated nausea, vomiting, fever or chills. The veteran reported that on one occasion, induced vomiting had provided instant relief. No abnormalities were revealed on abdominal x-rays and ultrasound in September 1992. The impression was epigastric pain, right upper quadrant discomfort, rule out gallstones, other possibilities include gastritis, possibly related to food allergy, and mild constipation. The veteran was seen again in November 1992 for acute epigastric pain, diagnosed as gastritis. Private medical records dated in March 1993 through August 1993 reflect treatment for recurrent epigastric pain. On panendoscopy conducted in April 1993 the impression was hiatus hernia with hypersecretion, reflux esophageal spasm. Final diagnosis in April 1993 was reflux esophagitis, hiatus hernia. When the veteran was seen in June 1993 and in August 1993 the assessment was probable food intolerance, allergy. An abdominal ultrasound was conducted in July 1993 which revealed no significant abnormalities. Records dated in July 1994 reflect that the veteran was seen for cramping epigastric pain, diagnosed as acute esophageal spasm. In March 1995 the veteran was seen with bilateral hand numbness. On neurological evaluation in April 1995 he reported that sitting at the computer aggravated his symptoms. The impression was absent ulnar sensory response bilaterally, most likely due to thoracic outlet syndrome, with sensory ulnar neuropathy less likely. In January 1996 he had an additional neurologic evaluation for pain in the right arm with tingling in the fourth and fifth fingers bilaterally since January 1995. The impression was deceased amplitude of ulnar sensory action potential bilaterally, which represented an improvement over the previous electromyogram (EMG), and was considered most likely due to old thoracic outlet syndrome. A VA orthopedic examination was conducted in August 1997. The veteran reported his history of left wrist injury in service with "trouble" since that time. Currently he noted the left wrist did not bother him except in cold weather. He reportedly felt some pain. Physical examination of the left wrist was unremarkable. There was full range of motion in all directions, with no tenderness and strong grasp. X-rays revealed the navicular bone was well healed with no significant soft tissue swelling, and no evidence for avascular necrosis. Service Connection Claims In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well-grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet.App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence of noting is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. Stomach Disorder On consideration of the veteran's claim for service connection for a stomach disability the current medical evidence reflects treatment beginning several years after service, for symptoms referable to the digestive system, which have been variously diagnosed as gastritis, and food allergy. Thus the initial criteria of a plausible claim, medical evidence of a current disability, is satisfied. Additionally, service medical records demonstrate the veteran was treated on multiple occasions for digestive disorders, most frequently diagnosed as gastroenteritis. Nevertheless, the record does not reflect competent evidence of a medical nexus between any current disorder and an injury or disease in service. In this regard the veteran has reported a history of similar symptoms for 15 years. Although evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well-grounded, the exception to this principle is where the evidentiary assertion is 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 veteran, who is not a medical professional is not competent to provide a medical opinion relating his current disability to service, or to the reported continuity of symptomatology since service. See, Moray v. Brown, 5 Vet.App. 211 (1993); Grottveit v. Brown, 5 Vet.App. 91 (1993); Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Similarly, the private medical examiner's reiteration of the history provided by the veteran does not constitute medical evidence of a medical nexus. LeShore v. Brown, 8 Vet.App. 406, 409 (1995). Thus, in the absence of competent supporting evidence the claim for service connection for a stomach disability is not plausible. Hearing Loss For purposes of VA benefits, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater, or the auditory threshold for at least three of those frequencies is 26 decibels or greater, or speech recognition scores, using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999). Despite the veteran's reports of hearing loss, and service medical records reflecting increasing auditory thresholds at all levels, none of the veteran's audiological evaluations, including the most recent findings recorded in 1984, meets the regulatory criteria for hearing loss disability as defined for purposes of VA benefits. Inasmuch as the veteran has presented no competent evidence of a current disability, the essential element of a plausible service connection claim is lacking. Thus the claim must be denied as not well- grounded. Entitlement to an Initial Rating for Residuals of Left Navicular Fracture Greater Than 10 Percent. The veteran's claim for a higher evaluation for compensation benefits is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). Proscelle v. Derwinski, 2 Vet. App. 629 (1992). In addition it is determined that all available relevant evidence has been obtained regarding the claim and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In general, disability evaluations are assigned by applying a schedule of ratings which represent, as far as can practicably be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155. Although the regulations require that, in evaluating a given disability, that disability be viewed in relation to its whole recorded history, 38 C.F.R. §§ 4.1, 4.2, where entitlement to compensation has already been established, and an increase in the disability rating is at issue, it is the present level of disability which is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In Fenderson v. West, 12 Vet. App. 119 (1999) the Court found that the "present level" rule, set out in Francisco, is not applicable to original ratings. The significance of this distinction was that at the time of an initial rating, separate ratings could be assigned for separate periods of time based on the facts found-a practice known as "staged ratings." Fenderson, supra. Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). These regulations include, but are not limited to 38 C.F.R. § 4.1, 4.2, and 4.10. 38 C.F.R. § 4.3 requires VA to resolve any reasonable doubt regarding the current level of the veteran's disability in his favor. In accordance with 38 C.F.R. § 4.7, where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise the lower rating will be assigned. Under 38 C.F.R. § 4.40 (1999), disability of the musculoskeletal system includes functional loss due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45 (1999), factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. In rating disability of the joints consideration is to be given to pain on movement, swelling, deformity or atrophy of disuse. Additionally, it is the intention of the rating schedule to recognize actually painful joints due to healed injury as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Where the regulations provide no specific rating for a disorder, it is permissible to rate under a closely related disease in which the functions affected, anatomical localizations and symptomatology are closely analogous. 38 C.F.R. § 4.20. The current medical evidence reflects that residuals of left navicular fracture are manifested by subjective reports of pain associated with cold weather, with clinical findings of full left wrist range of motion, no associated tenderness, and strong grasp, and radiographic findings of well healed bone, with no significant soft tissue swelling and no evidence for avascular necrosis. The veteran's left wrist disability is currently evaluated by analogy to the provisions of Diagnostic Code 5215, pertaining to limitation of wrist motion. Under Code 5215 a 10 percent rating is provided where dorsiflexion is limited to less than 15 degrees, or palmar flexion is limited in line with the forearm. No greater rating is available under Code 5215. A higher evaluation for limitation of wrist motion requires evidence of favorable ankylosis pursuant to Diagnostic Code 5214. Inasmuch as this criterion clearly is not reflected by the medical evidence of record, increased rating is not warranted under Code 5214. Further, in view of the examination findings of full range of motion, the 10 percent rating currently assigned under Code 5215 adequately reflects consideration of pain in the evaluation of the veteran's left wrist disability. Finally, it is noted that the record provides no evidence, or even at claim, that the neurological symptoms referable to the left hand are related to the service-connected injury. The latter are bilateral in nature and have been considered by the medical examiners to be attributable to thoracic outlet syndrome. Full consideration has been given to the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the current level of the veteran's disability in his favor. However, the medical evidence does not create a reasonable doubt regarding the current level of this disability. The evidence does not reflect the presence of more severe symptomatology such as would warrant a higher evaluation. Accordingly, it is determined that the preponderance of the evidence is against assignment of an increased disability rating for the veteran's service-connected residuals of left navicular fracture. ORDER The claims for service connection for a stomach disability and bilateral hearing loss are denied as not well-grounded. An initial evaluation greater than 10 percent for residuals of left navicular fracture is denied. REMAND In November 1996 the RO denied the veteran's applications to reopen his service connection claims for service connection for left and right shoulder disabilities, left and right elbow disabilities, right wrist disability and status post septoplasty, on the basis that there was no reasonable possibility that the new evidence, submitted in connection with each claim would change the outcome of the previous denial. In this regard it is noted that in September 1998, the Court of Appeals for the Federal Circuit (Federal Circuit) decided the case of Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In that case, the Federal Circuit expressly rejected the standard for determining whether new and material evidence had been submitted sufficient to reopen a claim set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Federal Circuit held that there is no requirement that in order to reopen such a claim the new evidence, when viewed in the context of all the evidence, both new and old, create a reasonable possibility that the outcome of the case on the merits would be changed. Id. Instead, the Federal Circuit, citing to the language of 38 C.F.R. § 3.156(a), declared that the evidence need only be so significant that it must be considered in order to fairly decide the merits of the claim. Indeed, the Federal Circuit reviewed the history of 38 C.F.R. § 3.156(a), including comments by the Secretary submitted at the time the regulation was proposed and concluded that the definition emphasized the importance of a complete record rather than a showing that the evidence would warrant a revision of a previous decision. Id. at 1363. In light of Hodge, which clearly changes the standard of review for applications to reopen previously denied claims on the basis of new and material evidence, this case should be remanded to the RO for their consideration. 1. The RO should review the appellant's application to reopen his claims for service connection for left and right shoulder disabilities, left and right elbow disabilities, right wrist disability and status post septoplasty, on the basis of all pertinent evidence of record, and all applicable laws, regulations, and case law, including the Federal Circuit's decision in Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The RO should provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, and addressing all issues and concerns that are noted in this REMAND. 2. If any determination remains adverse to the appellant, he and his representative must be furnished a supplemental statement of the case which contains a summary of the applicable laws and regulations, with appropriate citations, and a discussion of how such laws and regulations affect the determination. 38 C.F.R. § 19.29. The veteran should be given an opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The appellant need take no action unless otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. G. H. SHUFELT Member, Board of Veterans' Appeals