Citation Nr: 0006849 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 98-14 688 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for bilateral knee pain. 3. Entitlement to service connection for a bilateral ankle disorder. 4. Entitlement to service connection for a bilateral foot disorder. 5. Entitlement to service connection for a dental disorder claimed as bleeding gums. 6. Entitlement to a disability rating greater than 10 percent for low back pain. REPRESENTATION Appellant represented by: John Stevens Berry, Attorney ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from June 1994 to October 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. FINDINGS OF FACT 1. There is no competent medical evidence of bilateral hearing loss within the meaning of VA regulations at separation from service or on current VA examination. 2. There is no competent medical evidence of a current bilateral knee disorder that is related to active duty service. 3. There is no competent medical evidence of a current bilateral ankle disorder that is related to active duty service. 4. There is no competent medical evidence of a current bilateral foot disorder that is related to active duty service. 5. There is no competent medical evidence of a current dental disorder that is related to active duty service. 6. The veteran's low back disability is manifested by subjective reports of pain and stiffness, particularly with activities such as lifting or jumping, as well as flare-ups once or twice a month that resulted in difficulty with forward bending. There is objectively evidence of only some limitation of motion on all maneuvers with pain beyond the recorded ranges. There is no evidence of muscle spasm, unilateral loss of lateral spine motion, postural changes, or muscle atrophy. X-rays reveal no abnormalities of the lumbosacral spine. 7. No complex or controversial medical question has been presented in this case. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for bilateral hearing loss is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.102, 3.385 (1999). 2. The veteran's claim of entitlement to service connection for bilateral knee pain is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 3. The veteran's claim of entitlement to service connection for a bilateral ankle disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 4. The veteran's claim of entitlement to service connection for a bilateral foot disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 5. The veteran's claim of entitlement to service connection for a dental disorder claimed as bleeding gums is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 6. The criteria for a disability rating greater than 10 percent for low back pain have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.1-4.7, 4.20, 4.21, 4.40, 4.45, 4.71a, Diagnostic Code 5295 (1999). 7. An opinion from an independent medical expert is not warranted. 38 U.S.C.A. § 7109 (West 1991); 38 C.F.R. §§ 20.901, 20.902 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Claims Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establish that the disorder was incurred in-service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). However, a person claiming VA benefits must meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well grounded is plausible, meritorious on its own, or capable of substantiation. Murphy, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). For purposes of determining whether a claim is well grounded, the Board presumes the truthfulness of the supporting evidence. Arms v. West, 12 Vet. App. 188, 193 (1999); Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza, 7 Vet. App. 498, 504 (1995). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). VA's duty to assist a veteran in developing facts pertinent to his claim is not triggered until and unless the veteran submits a well grounded claim. Morton v. West, 12 Vet. App. 477, 486 (1999). 1. Bilateral Hearing Loss Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least 3 of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. These minimum disability requirements do not preclude service connection for a current hearing disability where hearing was within normal limits on audiometric testing at separation from service. Hensley, 5 Vet. App. at 160. Service connection may be had if the evidence sufficiently demonstrates a nexus between current hearing loss disability and service. Id. (citing Godfrey v. Derwinski, 2 Vet. App. 352 (1992)). The Board accepts as true statements from the veteran and K.B. that the veteran complained of having problems hearing at this stage of the adjudication. Arms, 12 Vet. App. at 193; Robinette, 8 Vet. App. at 75; King, 5 Vet. App. at 21. However, as stated above, a well grounded claim requires medical evidence of a current disability. Initially, the Board notes that audiometric findings at separation from service were within normal limits and did not meet the disability criteria set forth above. Moreover, there is no medical evidence of current hearing loss disability within the meaning of VA regulations. The September 1998 VA audiological evaluation revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 5 5 10 LEFT 15 10 5 5 10 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and 98 percent in the left ear. Because the evidence fails to reveal hearing loss disability within the meaning of VA regulations, the veteran's claim cannot be well grounded. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition, when there is no current disability, there necessarily can be no competent medical evidence of a nexus between a disability and service. Epps, 126 F.3d at 1468. 2. Disorders of the Bilateral Knees, Ankles, and Feet Service medical records show one complaint of left knee pain in November 1994 and one complaint of right ankle pain in December 1995. K.B.'s September 1998 statement indicated that the veteran complained of knee pain in service. Otherwise, the veteran asserts that he had problems with the knees, ankle, and feet in service. For purposes of determining whether his claim is well grounded, the Board presumes the truthfulness of the assertions. Arms, 12 Vet. App. at 193; Robinette, 8 Vet. App. at 75; King, 5 Vet. App. at 21. However, upon further review of the evidence of record, the Board finds that there is no competent medical evidence of a current disorders of the bilateral knees, ankles, and feet. Specifically, there is no medical evidence of a current disability. The diagnoses from the January 1998 VA examination were essentially knee pain, ankle pain, and foot pain, each without any significant evidence of pathology. A well grounded claim requires medical evidence of a current disability. Epps, 126 F.3d at 1468; Brammer, 3 Vet. App. at 225. Moreover, when there is no medical evidence of a current disability, there can be no medical evidence linking the disability to service. Therefore, absent competent medical evidence of a current knee, ankle, or foot disability, the veteran's claims are not well grounded. 3. Dental Disorder Claimed as Bleeding Gums The Board notes that, during the pendency of the veteran's appeal, VA amended the regulations setting forth the requirements for service connection for dental conditions, effective June 8, 1999. 64 Fed. Reg. 30,392-30,393 (1999). However, upon review of the amendments, the Board finds that the only substantive change made effects the duration of time required after entry into service for the incurrence of the dental conditions for purposes of establishing service connection, which has no impact on the veteran's claim. See Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991) (generally, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant will apply). Each defective or missing tooth and disease of the teeth and periodontal tissues is considered separately to determine whether the condition was incurred or aggravated in line of duty during active service. 38 C.F.R. § 3.381(a) (1998); 38 C.F.R. § 3.381(b) (1999). Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease will be considered service-connected solely for the purpose of establishing eligibility for outpatient dental treatment under the provisions of 38 C.F.R. § 17.161. 38 C.F.R. § 4.149 (1998); 38 C.F.R. § 3.381(a) (1999). Considering the evidence of record, the Board finds that the claim for a dental disorder, claimed as bleeding gums, is not well grounded. Again, the veteran's assertions as to having bleeding gums in service as accepted as true at this stage of evaluating his claim. Arms, 12 Vet. App. at 193; Robinette, 8 Vet. App. at 75; King, 5 Vet. App. at 21. However, as discussed above, when there is no evidence of a current disability, the claim is not well grounded. In this case, service medical and dental records, including the report of the September 1997 separation examination, were negative for complaints of bleeding gums or any diagnosis of a chronic dental disease. Moreover, the January 1998 VA general medical examination revealed no dental abnormality. In addition, as previously stated, when there is no current disability, there can be no medical evidence linking the disability to service. Accordingly, the Board finds that the veteran's claim for service connection for a dental disorder is not plausible and must be denied as not well grounded. Epps, 126 F.3d at 1468. Conclusion Under these circumstances, the Board finds that the veteran has not submitted a well grounded claim for service connection for any of the above-discussed alleged disorders. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Epps, 126 F.3d at 1468. Therefore, the duty to assist is not triggered and VA has no obligation to further develop the veteran's claim. Epps, 126 F.3d at 1469; Morton, 12 Vet. App. at 486; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). If the veteran wishes to complete his application for service connection for the alleged disorders, he should submit competent medical evidence showing that he has a current chronic disability that is in some way related to active duty service. 38 U.S.C.A. § 5103(a); Robinette, 8 Vet. App. at 77-80. The Board notes that in the notice of disagreement, the veteran's representative generally asserts entitlement to an independent medical examination and opinion. An independent medical expert opinion may be secured by the Board when an appeal involves medical complexity or controversy. 38 U.S.C.A. § 7109(a); 38 C.F.R. § 20.901(d). In this case, the Board cannot discern, and indeed the veteran's representative has not identified, any area of such medical complexity or controversy. The current medical evidence simply fails to show any significant symptomatology or chronic disorder of the knees, ankles, or feet. Therefore, an opinion from an independent medical expert is not warranted in this case. Increased Disability Rating for Low Back Pain When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Accordingly, the Board finds that the veteran's claim for an increased rating is well grounded. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102. The Board is also satisfied that all relevant facts with respect to this claim have been properly and sufficiently developed to address the issue at hand. Factual Background The veteran's service medical records were negative for the complaint or treatment of any back disorder. The September 1997 separation physical examination showed no abnormalities of the spine. On the accompanying report of medical history, the veteran related having recurrent back pain, explaining that his back had bothered him since basic training, only after a road march. The veteran was afforded a VA examination in January 1998. He related that he had pain and stiffness in the lower back for several years. He used Advil as needed. Lifting and jumping with impact precipitated his symptoms. Flare-ups occurred about twice a month, during which time he had trouble bending forward. There was no history of injury or surgery. The veteran had been employed as a warehouseman for a few weeks and had not lost any time from work due to back problems, though he experienced decreased productivity when his back bothered him. He did not use a cane, crutches, or a brace. Evaluation of range of motion of the lumbar spine revealed forward flexion to 78 degrees, backward extension to 30 degrees, lateral flexion to 30 degrees bilaterally, and rotation to 20 degrees bilaterally. The veteran indicated that he had pain on motion beyond these ranges. There was no lumbar muscle spasm or obvious neurological abnormalities. Musculature of the back was symmetrical. Posture was good. The diagnosis was low back pain. X-rays of the lumbosacral spine were negative for abnormalities. In a May 1998 rating decision, the RO granted service connection for low back pain and assigned a 10 percent disability rating. The veteran timely appealed that decision. The veteran was afforded another VA orthopedic examination in August 1998. He reported that his back symptoms and precipitating factors were unchanged from the previous examination. He denied any additional limitation of motion or functional impairment during flare-ups. Treatment included an occasional Tylenol. The examiner commented that the veteran walked and got on the examination table without difficulty. Evaluation of the range of motion of the lumbar spine revealed forward flexion to 85 degrees, backward extension to 30 degrees, and normal lateral flexion and rotation bilaterally. Straight leg raising was accomplished to approximately 75 degrees. Muscle mass, gross motor movement, sensation, and reflexes were all intact. The examiner commented that previous VA examination X-rays were normal. The diagnosis was lumbosacral spine strain with no evidence of significant abnormality or decreased range of motion. X-rays of the lumbosacral spine were essentially normal. In October 1998, the veteran's representative requested a new VA examination, asserting that the prior exams were inadequate. The veteran was scheduled for a VA orthopedic examination in March 1999. He failed to report for the examination. Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If a veteran has an unlisted disability, it will be rated under a disease or injury closely related by functions affected, symptomatology, and anatomical location. 38 C.F.R. § 4.20; see 38 C.F.R. § 4.27 (providing specific means of listing diagnostic code for unlisted disease or injury). If two evaluations are potentially applicable, 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. 38 C.F.R. § 4.7. The Board observes that, in a claim of disagreement with the initial rating assigned following a grant of service connection, as is the situation in this case, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35, 38 (1993) (on a claim for an original or an increased rating, it is presumed that the veteran seeks the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy when less than the maximum available benefit is awarded). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The RO evaluated the veteran's low back pain as 10 percent disabling under Diagnostic Code (Code) 5295, lumbosacral strain. 38 C.F.R. § 4.71a. A 10 percent rating is assigned when there is characteristic pain on motion. A 20 percent evaluation is in order when there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The Board notes that there are other potentially applicable diagnostic codes for the evaluation of back disabilities with ratings greater than 10 percent available. For example, Code 5292 provides for a 20 percent rating when there is moderate limitation of motion of the lumbar spine. However, as there is no evidence of vertebral fracture, spinal ankylosis, or neurological deficiencies, Codes 5285, 5286, 5289, and 5293 are not for application in this case. The Board finds that, considering the above symptomatology, the veteran's low back disability is most appropriately rated under Code 5295. The minor limitation of motion shown on examination does not amount to moderate limitation of motion for purposes of a higher rating under Code 5292. In addition, the described symptoms and flare-ups are more suggestive of a low back strain. Accordingly, the Board will evaluate the veteran's disability under Code 5295. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Considering the current record, the Board finds that the preponderance of the evidence is against awarding a disability rating greater than 10 percent for low back pain. The manifestations of the veteran's low back disability include subjective reports of pain and stiffness, particularly with activities such as lifting or jumping, as well as flare-ups once or twice a month that resulted in difficulty with forward bending. Objectively, the January 1998 VA examination report shows only some limitation of motion on all maneuvers with pain beyond the recorded ranges. The August 1998 VA examination shows slightly improved range of motion. There is no evidence of muscle spasm, unilateral loss of lateral spine motion, postural changes, or muscle atrophy. X-rays reveal no abnormalities of the lumbosacral spine. Given the minimal objective and subjective evidence of disability and functional loss, the Board cannot conclude that the disability picture more nearly approximates the criteria required for a 20 percent rating under Code 5295. 38 C.F.R. § 4.7. In addition, the Board notes that there is no basis for an extra-schedular rating pursuant to 38 C.F.R. § 3.321(b)(1). That is, there is no evidence of hospitalization for low back problems and no evidence showing marked interference with employment. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to a disability rating greater than 10 percent for low back pain. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.3, 4.7, 4.40, 4.45, 4.71a, Code 5295. The Board notes that the veteran's representative objective to the veteran being examined in August 1998 by a physician's assistant rather than a medical doctor. However, the examination results from the August 1998 VA examination were essentially unchanged from the previous examination. Indeed, the veteran himself told the examiner that his back disability was unchanged. Moreover, the Board emphasizes that the veteran was in fact scheduled for another VA orthopedic examination in March 1999 and failed to report. Finally, the Board again observes the general request of the veteran's representative for an independent medical expert opinion. 38 U.S.C.A. § 7109(a); 38 C.F.R. § 20.901(d). However, as with the other claims, the Board cannot discern, and the veteran's representative has not identified, any area of medical complexity or controversy. Therefore, an opinion from an independent medical expert is not warranted. ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for bilateral knee pain is denied. Entitlement to service connection for a bilateral ankle disorder is denied. Entitlement to service connection for a bilateral foot disorder is denied. Entitlement to service connection for a dental disorder claimed as bleeding gums is denied. Entitlement to a disability rating greater than 10 percent for low back pain is denied. The veteran's request for an independent medical expert opinion is denied. BRUCE KANNEE Member, Board of Veterans' Appeals