Citation Nr: 0004301 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 95-21 028 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to a compensable evaluation for fracture, left lateral malleolus. 2. Entitlement to an evaluation in excess of 10 percent for partial left facial numbness. 3. Entitlement to service connection for right, ulnar neuropathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Robinson, Associate Counsel INTRODUCTION The veteran had active service from March 1954 to August 1965. The veteran also had verified periods of active duty for training (ACDUTRA) in the National Guard from December 1974 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) from a February 1995 rating determination of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for right ulnar neuropathy, and granted service connection for residuals of a left ankle fracture, evaluated as noncompensable, effective November 7, 1990. In a July 1996 rating decision, the issues of entitlement to service connection for right sided numbness, right hip disability, left rib fracture, and total disability rating based on individual unemployabiltiy were denied. Appellate review is initiated by a notice of disagreement and completed by a substantive appeal filed after a statement of the case is furnished to the veteran. The notice of disagreement must be filed within one year from the date of mailing of the notice of the determination. The substantive appeal must be filed within 60 days from the date the statement of the case is mailed, or within the remainder of the one year period from the date of mailing of the notice of determination, whichever occurs later. In the absence of a properly perfected appeal, the Board is without jurisdiction to determine the merits of the case. 38 U.S.C.A. § 7105; see Roy v. Brown, 5 Vet. App. 554 (1993); 38 C.F.R. §§ 20.200, 20.302. The issues of entitlement to service connection for ride side numbness, right hip disability, left rib fracture, and total disability rating based on individual unemployabiltiy were denied in a July 1996 decision. Subsequently, the veteran submitted a notice of disagreement. A statement of the case was issued in April 1997. It does not appear, however, that the veteran has perfected appeals as to these issues by submitting a substantive appeal. Although the Board is obligated to assess its jurisdiction over an issue, before doing so it must determine whether the claimant will be prejudiced by such an assessment. In this regard the Board must consider whether the veteran has had an opportunity for a hearing and to offer argument and evidence on the jurisdictional question. Marsh v. West, 11 Vet. App. 468 (1998); VAOPGCPREC 9-99 (1999), 64 Fed. Reg. 52376 (1999). In the instant case the veteran and his representative were informed that in order to perfect his appeal, he must submit a substantive appeal within 60 days of the statement of the case or the remainder of the one year period from the date of notice of the rating decision. Despite having been so informed, the veteran has not submitted a substantive appeal to perfect his appeal. The Board concludes that the veteran is not prejudiced by its determination that it does not have jurisdiction over the issues considered in the April 1997 statement of the case, because he was previously informed of the necessary steps to vest jurisdiction in the Board, and has also been afforded the opportunity for hearings and to submit argument and evidence. This case was previously before the Board in March 1998, when it was remanded for further development. The instructions contained in the remand have been complied with. Stegall v. West, 11 Vet. App. 268 (1998). Service connection for a partial, left facial numbness was established pursuant to a 1999 rating action with a 10 percent evaluation assignment. The veteran has continued to express disagreement. The case has been returned to the Board for further consideration. During a November 1999 hearing before the undersigned, the veteran withdrew his appeal on the issue of entitlement to an evaluation in excess of 60 percent for a low back disability. The Board finds, therefore, that it is without jurisdiction to render a decision on this issue. See Hamilton v. Brown, 39 F.3d 1574 (Fed. Cir. 1994) (a notice of disagreement ceases to be valid if withdrawn); 38 C.F.R. § 20.204 (1999). The issue of entitlement to a compensable evaluation for fracture, left lateral malleolus will be discussed in the remand portion of this decision. FINDINGS OF FACT 1. The veteran's partial, left face numbness is manifested by anesthesia of the trigeminal nerve. 2. Medical evidence demonstrates that the veteran's right, ulnar neuropathy began during active service. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for partial, left facial numbness have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, Diagnostic Code 8205 (1999). 2. Right, ulnar neuropathy was incurred during active military service. 38 U.S.C.A. § 1110, 1131 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background A neurology report from Walter Reed Army Medical Center dated in January 1985 shows complaints of facial numbness after a myelogram in September 1984. The assessment was "symptoms possibly related to metrizamide myelogram, but unable to prove." Physical evaluation Board proceedings at the time of National Guard retirement dated in 1985, noted right ulnar nerve entrapment syndrome sustained in the line of duty. The veteran underwent VA examination in June 1991. At that time, he reported that he broke his hand in a parachute jump. Findings of an old fracture, right hand, proximal end of the fifth metacarpal were noted. The diagnosis was mild deformity of base of fourth metacarpal right hand with good functioning. The veteran was accorded a personal hearing in October 1995. At that time, he testified that he broke his right hand in 1972 in the same parachute accident in which he injured his back. He reported that his hand was ignored at the time, due to the severity of his back. He reported that he has arthritis in his hand, but no problem with his elbow or shoulder. The veteran testified that he began to have numbness in his face after receiving injections of dye at a VA facility in 1985. The veteran underwent a VA peripheral nerve examination in September 1998. At that time, he complained of numbness in the face and at times, a bitter taste on his tongue. He also reported that he had fractured his right hand in 1972 in a parachute jump. He further reported that since that time, he had experienced numbness in fingers 4-5 of the right hand. On examination, there was no memory loss or aphasia. His speech was clear. Sense of smell was intact. Visual fields were full. Testing of facial sensation revealed numbness on the left side corresponding to the distribution of divisions I-II-III of the trigeminal nerve. Corneal reflex was intact. There was no facial weakness. Hearing was within normal limits. The palate moved symmetrically. There was no hoarseness. The Sternocleidomastoid and trapezius muscles were strong and equal. His tongue was in the midline without atrophy or fasciculation. Sense of taste was intact. Extremities revealed no weakness, atrophy, or fasciculation. Deep tendon reflexes were 1+ and equal. Sensation was normal throughout, except for some decreased sensation in fingers 4- 5 of the right hand. There was negative Tinel's sing at the elbow and at the wrist. There were no cerebellar signs. Romberg was negative. The diagnosis was numbness in the distribution of the left trigeminal nerve secondary to dye injection and ulnar nerve neuropathy secondary to trauma. In a November 1998 VA examination report, the September 1998 examiner reported that the veteran does not have a left facial weakness. He had a left facial anesthesia that involved that trigeminal nerve and came on historically after his dye injection. He commented that he had a trigeminal neuropathy, not a facial weakness, secondary to the dye injection. He also reported that the veteran indicated that he broke his hand in a parachute jump and was treated at Kirk Army Hospital. He reported that the record did not show an injury to the hand. The veteran reported numbness in the fourth and fifth fingers of the hand. The examiner opined that the veteran had ulnar nerve neuropathy on the basis of the fracture. The veteran was accorded a hearing before the undersigned in November 1999. At that time, he testified that he began to experience numbness in his hand approximately one week following his parachute accident. He reported that he experienced numbness from underneath his eye down to his chin and around the lip. He reported that the numbness migrated to his tongue causing impairment of taste. He also reported a very vile taste associated with his facial numbness. Increased Rating The appellant's claim is well grounded. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). A veteran's assertion that the disability has worsened serves to render the claim well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). In the instant case the veteran is technically not seeking an increased rating, since his appeal arises from the original assignment of a disability rating. However, when a veteran is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability, the claim continues to be well grounded. Fenderson v. West, 12 Vet. App. 119 (1999); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Disability evaluations are rated in accordance with a schedule of ratings which are based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). The disability ratings evaluate the ability of the body to function as a whole under the ordinary conditions of daily life including employment. Evaluations are based on the amount of functional impairment; that is, the lack of usefulness of the rated part, or system, in self-support of the individual. 38 C.F.R. § 4.10 (1999). 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 for the higher rating. 38 C.F.R. § 4.7 (1999). In considering the severity of a disability it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, (1999). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (1999); Peyton v. Derwinski, 1 Vet. App. 282 (1991). However, while the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. The veteran's partial, left facial numbness has been rated 10 percent disabling under Diagnostic Code 8205, pertaining to paralysis of the fifth (trigeminal) cranial nerve. Paralysis of the fifth (trigeminal) cranial nerve warrants a 10 percent evaluation if paralysis is incomplete and moderately disabling; 30 percent evaluation if incomplete and severely disabling; and 50 percent if the paralysis is complete. A note to the rating criteria reflects that the criteria are dependent upon the relative degree of sensory manifestation or motor loss. 38 C.F.R. § 4.124a, Diagnostic Code 8205. With regard to manifestations analogous to impairment of the fifth cranial nerve, the evidence shows that the veteran has left facial anesthesia, but no weakness. Sense of taste was intact and his palate moved symmetrically. Corneal reflex was intact. There only objective pathology reported was left facial numbness. The Board finds that such symptomatology amounts to no more than moderate incomplete paralysis, and hence the current 10 percent evaluation is appropriate for partial, left facial numbness under Diagnostic Code 8205. The evidence does not show severe incomplete paralysis. Service Connection The threshold question that must be resolved with regard to each claim is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. If he has not, his appeal fails as to that claim, and VA is under no duty to assist him in any further development of that claim. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). Case law provides that, although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Dixon v. Derwinski, 3 Vet. App. 261, 262 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim to be well grounded, there must be competent evidence of 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). Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection is provided for a disease or injury, incurred or aggravated in the line of duty during "active military, naval, or air service." 38 U.S.C.A. § 1110 (West 1991). The term "active military, naval, or air service" includes periods of active duty for training during which a veteran was disabled by a disease or injury, and periods of inactive duty for training during which a veteran was disabled by injury. 38 U.S.C.A. § 101(24) (West 1991). Where the determinant issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The United States Court of Appeals for Veterans Claims, (Court) has held that a lay party is not competent to provide probative evidence as to matters requiring expertise derived from specialized medical knowledge, skill, expertise, training, or education. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Generally speaking, in decisions on claims for veteran's benefits, the veteran is entitled to the "benefit of the doubt" when there is an approximate balance of positive and negative evidence. 38 U.S.C.A. § 5107(b) (West 1991), Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). When the evidence supports the claim or is in relative equipoise, the veteran prevails. Gilbert, 1 Vet. App. at 56. Further, where the "fair preponderance of the evidence" is in favor or against the claim, the benefit of the doubt rule has no application. Id. The Physical Evaluation Board Proceedings dated in June 1985 show that the veteran sustained mild right ulnar nerve entrapment syndrome, with decreased sensation and grip in the line of duty. The 1998 VA examiner linked the veteran's current right, ulnar neuropathy to service. There is no competent evidence against that opinion. Accordingly service connection for a right, ulnar neuropathy is granted. In the instant case, the veteran has a current diagnosis of right, ulnar neuropathy, and there is a medial opinion linking the current disability to service. That opinion is competent in that it was rendered after reviewing the entire claims folder. Where each of the elements of a well-grounded claim is indisputably demonstrated, the claim will be allowed. Rose v. West, 11 Vet. App. 169 (1998). ORDER Entitlement to an evaluation in excess of 10 percent for partial, left facial numbness is denied. Service connection for right, ulnar neuropathy is granted. REMAND During his November 1999 hearing before the undersigned, the veteran testified that he received treatment for his left ankle disability from the VA medical facility in Baltimore, Maryland in the spring of 1999 and was to receive additional treatment in January 2000. The records of that treatment are relevant to the issue of entitlement to a compensable evaluation for the fracture of the left, lateral malleolus, but have not yet been obtained. The VA treatment records are deemed to be evidence of record, and a determination on the merits of the veteran's appeal cannot be made without consideration of that evidence. See Bell v. Derwinski, 2 Vet. App. 611 (1992). To ensure that the Board's decision is based on all of the relevant evidence of record, the case is REMANDED to the RO for the following development: 1. The RO should obtain all pertinent VA treatment records pertaining to the veteran, including records of the veteran's treatment at the VA Medical Center in Baltimore, Maryland since November 1998. 2. After undertaking any additional development deemed appropriate, including re-examination, in addition to that requested above, the RO should re- adjudicate the issue of entitlement to a compensable evaluation for fracture, left, lateral malleolus pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5271 (1999), with consideration of the potential applicability of the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999). 3. The RO should also consider whether the claim warrants referral for consideration of an extra- schedular rating in accordance with the provisions of 38 C.F.R. § 3.321. If the benefit requested on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case containing the laws and regulations referable to reopening previously denied claims, including the provisions of 38 C.F.R. § 3.156 (1998), and be given the opportunity to respond. The case should then be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action until he is notified. 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. Mark D. Hindin Member, Board of Veterans' Appeals