BVA9501924 DOCKET NO. 88- 53 855 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a seizure disorder. 2. Entitlement to service connection for a neurological disorder of both feet. 3. Entitlement to service connection for a chronic low back disorder. 4. Entitlement to service connection for a chronic disorder of both upper extremities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from July 1974 to February 1987. This appeal arises from a January 1988 rating decision of the Los Angeles, California, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to the benefits sought. This case was remanded for further development in August 1989 and November 1991. In December 1993, a rating action was issued which confirmed and continued the denials of his service connection claims. It is noted that the veteran, in his June 1988 Notice of Disagreement, had expressed disagreement with the noncompensable evaluations assigned to his service-connected disabilities. However, he failed to perfect the appeal of these issues by submitting a timely filed Substantive Appeal. It is also noted that each remand in this case had requested that the veteran clarify what disability evaluations he wished to challenge. He failed to provide this information. Therefore, these issues are not properly before the Board for appellate review at this time. Finally, it is noted that the veteran appears to be raising a claim for entitlement to individual unemployability due to service-connected disabilities. His representative has requested consideration under the provisions of 38 C.F.R. § 3.324 (1993). As these issues have not been properly developed, and are not inextricably intertwined with an issue on appeal, they are hereby referred to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that he suffers from a seizure disorder that first manifested itself during his period of service. He stated that he experienced periods of rigidity, unconsciousness, and involuntary urination. He also asserts that he first began to have trouble with his low bask, feet and upper extremities while serving on active duty. Therefore, he believes that service connection should be granted for these disabilities. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claims are well grounded. FINDINGS OF FACT The veteran is not shown by competent medical evidence to suffer from a seizure disorder, a neurological disorder of the feet and upper extremities, or a chronic low back disability. CONCLUSION OF LAW The appellant has not submitted evidence of well grounded claims. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(a) (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question to be answered in this case is whether the appellant has presented evidence of well grounded claims; that is, claims which are plausible. If he has not presented well grounded claims, his appeals must fail and there is no duty to assist him further in the development of his claims because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). While claims need not be conclusive, they must be accompanied by supporting evidence sufficient to justify a belief by a fair and impartial individual that the claims are plausible. See Tirpak v. Derwinski, 2 Vet.App. 609,610 (1992). As will be explained below, it is found that the claims are not well grounded. Under the applicable criteria, service connection may be granted for a disability the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 1991). Where a veteran has served for 90 days or more during a period of war and arthritis become manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). For the showing of a 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 diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. 3.303(b) (1993). Background Seizure Disorder A review of the service medical records revealed that the veteran was admitted in September 1982 to undergo a vasectomy. During the preparation for the procedure, he had an apparent vasovagal reaction to the local anesthetic. He was apneic for approximately 15-20 seconds. He reported several such reactions to locals in the past. A neurological examination was within normal limits. An EEG was normal. There were no other neurological symptoms and no signs of epilepsy; he also indicated no significant head trauma. He stated that he had experienced episodes in 1975 and 1979 where he suffered from rigidity, profuse sweating and involuntary urination. In September 1983, the veteran was brought to the emergency room in an ambulance. Witnesses stated that he had passed out and had an epileptic-like seizure. The veteran stated that he experienced weakness and a tingling sensation in the left arm prior to the episode. He appeared to have petit mal type movements in the emergency room, although there was no tongue biting and his clothing was dry. He was noted to be slightly hyperventilated. The assessment was rule out hyperventilation syndrome; rule out seizures. An EEG was performed, which was normal. On October 5, 1983, he experienced paresthesia on the left arm, tingling and bilateral tunnel vision. An EEG was normal. Hyperventilation reproduced the symptoms. The assessment was probable hyperventilation. An October 14 neurological consultation noted that a seizure disorder was doubted. It was most probable that he was suffering from hyperventilation syndrome. In August 1984, the veteran was being treated for foot pain, at which time a needle was inserted into his foot. He appeared to experience a mild seizure. In August 1985, the diagnoses were history of seizure disorder, rule out conversion disorder versus true seizures. A Medical Board evaluation was performed in July 1986, at which time vasovagal or seizure disorder or supratentorial disorder secondary to insertion of a needle or IV catheter percuntaneously were diagnosed, which precluded the patient from undergoing any surgical procedures. In January 1992, the veteran was examined by VA. He gave a history of six episodes of "seizures" between 1975 and 1984. He indicated that he had not experienced any episodes since 1984. After a review of the records, the neurological examiner noted that a seizure disorder could not be diagnosed. It was noted that his episodes could have been a physiologic reflex to needle insertions. Bilateral Foot Disorder A review of the veteran's service medical records indicated that he was first seen for foot pain in 1984. In May of that year he complained of pain between the second and third metatarsal heads. He noted that was unable to walk, run or march without pain. He stated that he had numbness and tingling upon weight bearing. He was tender to palpation and had increased pain with lateral compression. The diagnosis was Morton's neuroma. He was treated repeatedly throughout 1984 and 1985 for this disorder. He was also placed on profiles that limited his amount of walking, running, marching and standing. In May 1986, an examination revealed that both of the veteran's feet were tender to palpation. Bilateral Morton's neuroma was again diagnosed. A Medical Evaluation Board conducted in July 1986 found that his feet were very tender over the metatarsal heads, particularly over the first and second metatarsal webbed spaces. There was also pain to lateral compression of the metatarsophalangeal joints, as well as mild hallux valgus. He ambulated with an antalgic gait. The diagnosis was bilateral Morton's neuroma. A VA examination was performed between September and October 1987. X-rays of the feet were normal. The objective examination revealed that the dorsalis pedal and posterior tibial pulses were present and strong. No calluses were present on the soles of the feet and no other abnormalities were noted. It was significant that light touch was accompanied by expressions of severe pain, which were deemed by the examiner to be inappropriate. No diagnosis of a foot disorder was made; rather, a possible hysterical reaction was noted. A second VA examination of the veteran was performed in January 1992. He stated that since his discharge from the military, the pain in his feet had disappeared. In fact, he indicated that he was able to run for two miles. He reported that he had been seen by several private physician's who had him stated that his Morton's neuroma no longer existed. Dorsiflexion was 25 degrees bilaterally, and plantar flexion was 35 degrees bilaterally. There was no evidence of bunions or calluses. There was a soft, mild callus on the third and fourth metatarsal heads. There were painful sites between the webbed spaces of either foot. X-rays were negative. The diagnosis stated that there was no evidence of Morton's neuroma; normal feet. Low Back A review of the service medical records indicated that the veteran was first seen for complaints of a painful low back in September 1979, at which time he reported pain after lifting some ammunition. He stated that he was not able to stand or sit for prolonged periods. The pain allegedly spread across the low back to the right side. The physical examination found no spasm and no muscle weakness or sensory loss. The diagnosis was strain, right paraspinal muscles of the thoracic and lumbar spines. A February 1985 x-ray of the low back revealed no abnormalities. In September 1985 it was noted that his low back pain probably represented mechanical low back pain. Range of motion studies revealed forward flexion to 30 degrees, extension to 10 degrees, and bilateral lateral bending to 20 degrees. There was pain upon all motions. There were no muscle spasms, straight leg raises were negative and a neurological examination was intact. A November 1986 x-ray showed minimal facet degenerative joint disease. That same month, he was placed on profile due to chronic mechanical low back pain. A Medical Board Evaluation conducted in July 1986 revealed no evidence of point tenderness and no spasm. There was mild restriction of motion due to subjective pain. The diagnosis was chronic low back pain of unknown etiology. A VA examination was conducted between September and October 1987. This included an x-ray of the low back which was normal. It was noted that the veteran could or would not stand vertically on his feet for an adequate examination of the back. He was also using a crutch in the left hand. The examiner noted that the veteran's complaints appeared to be inappropriate. The diagnosis was chronic low back strain. A second VA examination was performed in January 1992. During this examination, the veteran commented that his back had improved. In fact, he noted that it had been quiescent until 1989, when he fell and re-injured it. The objective examination revealed that he had a slight round back. Forward flexion was to 95 degrees, extension was to 45 degree, and lateral rotation and bending were to 40 degrees. Straight leg raises were negative, as was the Patrick's sign. An x-ray revealed that the disc spaces were normal and there were no osteophytes. The diagnosis was normal functioning body mechanics of the low back. Upper Extremity Disorder The veteran's service medical records revealed that the veteran occasionally complained of tingling in the arms, particularly on the left, during his alleged "seizures." However, no separate diagnosis was ever made for these complaints. This numbness or tingling would resolve without specific treatment. The July 1986 Medical Board Evaluation noted his past complaints of hand numbness. The objective examination found no decreased sensation in the upper extremities. No diagnosis was provided. The post-service medical records contain no reference to a neurological disorder involving the upper extremities. The veteran was examined by VA on two occasions, in September to October 1987 and January 1992, and on neither occasion did he complain of any disability involving his upper extremities. Analysis Initially, as noted above, the law pertaining to direct service connection clearly requires that there must exist a disability that resulted from disease or injury incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 1991). The law referring to presumptive service connection requires that certain disabilities, to include arthritis, must manifest themselves to a compensable degree within one year of separation to be service- connected. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). Finally, service connection for a chronic disease, established through chronicity of symptomatology, may be proven. In the instant case, the evidence of record does not establish that the veteran suffers from any claimed disability which can be service-connected under any of the above-noted laws. There is no objective evidence of record to show that he suffers from a seizure disorder, a neurological disorder of the feet or upper extremities, or a chronic low back disability. In fact, the current VA examination, conducted in January 1992, specifically noted that the veteran did not suffer from a seizure disorder, Morton's neuroma or any other foot disorder, or from a back disorder. As far as the upper extremities are concerned, this examination did not even contain any subjective complaints of a problem. While degenerative joint disease in the low back was referred to in the service medical records, two subsequent VA examinations contained x-rays that refuted the existence of this disease. Therefore, there is no basis upon which to grant service connection for this disorder, either on a direct or a presumptive basis. The United States Court of Veterans Appeals has stated that, in order for a claim for service connection to be well grounded, there must be competent medical evidence of the existence or diagnosis of a current disorder that can be linked to the period of service. Grivois v. Brown, 6 Vet.App. 136 (1994); Grottveit v. Brown, 5 Vet.App. 91 (1993); and Rabideau v. Derwinski, 2 Vet.App. 141 (1992). As noted above, there is no competent medical evidence of the current existence of a seizure disorder, a foot disorder, to include Morton's neuroma, a low back disorder, or a neurological disorder of the upper extremities. Therefore, as the appellant's claims for service connection for these disorders are not well grounded, they must be dismissed. To do otherwise and handle the case on the merits would be inappropriate because it would require the appellant in the future to overcome the inertia of earlier, adversely adjudicated claims. See Grottveit, at 93. ORDER The appeal of the claim of service connection for a seizure disorder, a disorder of the feet, a low back disorder, and a disorder of the upper extremities is dismissed. So much of the rating decision of January 1988 as denied these claims on the merits is vacated. KENNETH R. ANDREWS, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.