Citation Nr: 0007818 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 97-08 847 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to service connection for a bilateral hearing loss disability. 3. Entitlement to service connection for a left elbow disability. 4. Entitlement to service connection for a disability of the middle finger of the right hand. 5. Entitlement to an increased disability rating for a left knee disability, currently evaluated as 10 percent disabling. 6. Entitlement to an increased disability rating for a left hip disability, currently evaluated as 10 percent disabling. 7. Entitlement to an increased disability rating for a low back disability, currently evaluated as 10 percent disabling. 8. Entitlement to an increased (compensable) evaluation for a left ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. L. Wight, Associate Counsel INTRODUCTION The veteran served on active duty from April 1982 to December 1987. This case comes before the Board of Veterans' Appeals (Board) by means of a March 1996 rating decision rendered by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA) wherein service connection was denied for a neck disability, a right middle finger disability, a bilateral hearing loss disability, and a left elbow disability. The RO also denied increased disability ratings for a left knee disability, a left hip disability, a low back disability, and a left ankle disability. The veteran appeals these decisions. The issues of entitlement to increased disability ratings for a left knee disability, a left hip disability, a low back disability, and a left ankle disability are the subject of the REMAND immediately following the ORDER. FINDINGS OF FACT 1. A neck disability is not currently shown. 2. A bilateral hearing loss disability is not shown in service. 3. A left elbow disability is not shown in service. 4. A disability of the middle finger of the right hand is not currently shown. CONCLUSIONS OF LAW 1. A claim for service connection for a neck disability is not well grounded. 38 U.S.C.A. §§ 1110, 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304 (1999). 2. A claim for service connection for a bilateral hearing loss disability is not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304 (1999). 3. A claim for service connection for a left elbow disability is not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304 (1999). 4. A claim for service connection for a disability of the middle finger of the right hand is not well grounded. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.304 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question that must be resolved with regard to each claim is whether the appellant has presented evidence that each claim is well grounded; that is, that each claim is plausible. If he has not, the appeal fails as to that claim, and the Board is under no duty to assist him in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). In order to establish a "well grounded" claim for service connection for a particular disability, the veteran needs to provide evidence relevant to the requirements for service connection and of sufficient weight to make the claim plausible or meritorious on its own and capable of substantiation. Franko v. Brown, 4 Vet.App. 502, 505 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 610-611 (1992); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The three elements of a "well grounded" claim are: (1) evidence of a current disability as provided by medical diagnosis; (2) evidence of incurrence or aggravation of a disease or injury in service as provided by either lay or medical evidence, as the situation dictates; and, (3) a nexus, or link, between the inservice disease or injury and the current disability as provided by competent medical evidence. Caluza v. Brown, 7 Vet.App. 498, 506 (1995); see also 38 U.S.C.A. § 1110 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). The Board notes that service connection may be established for a current disability that has not been clearly shown in service where there is a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service is shown. 38 U.S.C.A. § 1110 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). The Board concludes that medical evidence is needed to lend plausible support for the issues presented by this case because they involve questions of medical fact requiring medical knowledge or training for their resolution. Caluza. See also Layno v. Brown, 6 Vet.App. 465, 470 (1994); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). A. Neck Disability The veteran contends that he has a neck disability that he attributes to his active duty service. With regard to this claim for service connection, the determinative issues presented are (1) whether the veteran had a neck disability during service; (2) whether he currently has a neck disability; and if so, (3) whether his current neck disability is etiologically related to his in service neck disability. The evidence shows that the veteran was involved in a motor vehicle accident in December 1985. Service medical records indicate that he experienced cervical spine stiffness and pain following the accident. He was seen in January 1986 with complaints of neck pain. In December 1986, the veteran complained of pain to the left side of his neck after lifting a 5-gallon bucket. A diagnosis of left sternocleidomastoid strain was rendered. A physical therapy treatment record of February 1987 indicates that the veteran complained of neck pain. Treatment at that time consisted of neck stretching exercises. A September 1987 Medical Evaluation Board examination report indicates that the veteran had no neck pain. He was diagnosed with myofascial syndrome involving the left shoulder with no evidence of cervical spine degeneration or radiculitis. The Board notes that service connection has previously been awarded for the veteran's left shoulder disability. Based on the clinical evidence contained in the service medical records, the Board finds that a neck disability diagnosed as left sternocleidomastoid strain and manifested by neck pain is shown in service. In addition to an inservice disability, the evidence must show a neck disability to satisfy the threshold requirement of submission of a well-grounded claim. While the post- service VA medical records show treatment for various orthopedic complaints, a review of the post-service medical evidence does not show any treatment, complaints, or diagnosis of a current neck disability. Since, as previously discussed, service connection cannot be granted for a disease or disability that is not current shown, the Board must find that the veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual at this time that service connection for a neck disability could be granted, as is required under the provisions of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). See also Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992). The Board notes that a personal hearing before a RO hearing officer in March 1997, the veteran expressed his belief that he has a current neck disability related to his inservice automobile accident. The veteran indicated that he has arthritis in his neck that occasionally flares up. The Board must point out that the veteran, while entirely competent to report his symptoms both current and past, has presented no clinical evidence or medical opinion of a current neck disability, to include arthritis. In the absence of evidence indicating that the veteran has the medical knowledge or training requisite for the rendering of clinical opinions, the Board must find that his contentions with regard to the presence of a current neck disability to be of no probative value. See Moray v. Brown, 5 Vet. App. 211 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board accordingly finds that the veteran's claim is not well grounded and is therefore denied, in accordance with the decision of the United States Court of Veterans Appeals (Court), now the United States Court of Appeals for Veterans Claims, in Edenfield v. Brown, 8 Vet. App. 384 (1995). B. Bilateral Hearing Loss Disability The veteran contends that he has a bilateral hearing loss disability that he attributes to his active duty service. With regard to this claim for service connection, the determinative issues presented are (1) whether the veteran had a bilateral hearing loss disability during service; (2) whether he currently has a bilateral hearing loss disability; and if so, (3) whether his current bilateral hearing loss disability is etiologically related to his inservice bilateral hearing loss disability. As stated previously, for a claim for service connection to be considered, the evidence must show, inter alia, an inservice disability. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be 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 three 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 (1999). After a review of the evidence, the Board finds that a bilateral hearing loss disability is not shown in service. In an August 1987 report of medical history, the veteran indicated that he did not have, nor had he ever had, any ear trouble or hearing loss. Service medical records show that the veteran was afforded several audiological examinations. On an audiological evaluation in March 1987, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 5 5 LEFT 10 10 20 0 5 Similarly, a Medical Evaluation Board examination report of August 1987 indicates that pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 10 20 0 10 LEFT 15 15 25 10 10 The veteran was also afforded an audiological evaluation in October 1987 at which time pure tone thresholds were recorded as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 20 5 5 LEFT 20 20 25 10 15 As the evidence does not show an auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 40 decibels or greater; auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz of 26 decibels or greater; or speech recognition scores using the Maryland CNC Test of less than 94 percent, the Board finds that a bilateral hearing loss disability is not shown in service. The Board notes the veteran's contentions raised at the RO hearing of March 1997 that an Army physician informed him at the time of his separation examination that he had hearing loss. However, as stated above, the clinical evidence shows that his hearing loss, if any, constituted a disability under VA regulations. The Board notes that the veteran, while entirely competent to report his symptoms both current and past, has presented no clinical evidence or medical opinion of an inservice bilateral hearing loss disability. The Board notes that service connection may be established for a current disability that has not been clearly shown in service where there is a current disability and a relationship or connection between that disability and a disease contracted or an injury sustained during service is shown. 38 U.S.C.A. § 1110 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). However, the evidence does not show that any current bilateral hearing loss disability is related to a disease or injury sustained during active service. In the absence of evidence indicating that the veteran has the medical knowledge or training requisite for the rendering of clinical opinions, the Board must find that his contentions with regard to the presence of a bilateral hearing loss disability during service and the etiology of any current bilateral hearing loss disability to be of no probative value. See Moray v. Brown, 5 Vet. App. 211 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Since, as previously discussed, service connection cannot be granted for a disease or disability that is not shown in service, the Board must find that the veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual at this time that service connection for a bilateral hearing loss disability could be granted, as is required under the provisions of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). See also Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992). The Board accordingly finds that the veteran's claim is not well grounded and is therefore denied, in accordance with the Court's decision in Edenfield v. Brown, 8 Vet. App. 384 (1995). C. Left Elbow Disability The veteran contends that he has a left elbow disability that he attributes to his active duty service. With regard to this claim for service connection, the determinative issues presented are (1) whether the veteran had a left elbow disability during service; (2) whether he currently has a left elbow disability; and if so, (3) whether his current left elbow disability is etiologically related to his inservice left elbow disability. A review of the evidence does not show that a left elbow disability existed during service. At the March 1997 RO hearing, the veteran indicated that he injured his left elbow in the December 1985 automobile accident. However, service medical records are silent for any treatment, complaints, or diagnosis of a left elbow disability during the veteran's active military service. While the veteran is entirely competent to report his symptoms both current and past, has presented no clinical evidence or medical opinion that would establish a link between any current left elbow disability and his active military service, nor has he presented evidence clinical or medical evidence of an inservice left elbow injury or disability. In the absence of evidence indicating that the veteran has the medical knowledge or training requisite for the rendering of clinical opinions, the Board must find that his contentions with regard to the inservice presence of a left elbow disability and the etiology of any current left elbow disability to be of no probative value. See Moray v. Brown, 5 Vet. App. 211 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Since, as previously discussed, service connection cannot be granted for a disease or disability that is not shown in service, the Board must find that the veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual at this time that service connection for a left elbow disability could be granted, as is required under the provisions of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). See also Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992). The Board accordingly finds that the veteran's claim is not well grounded and is therefore denied, in accordance with the Court's decision in Edenfield v. Brown, 8 Vet. App. 384 (1995). D. Right Middle Finger Disability The veteran also contends that he has a right middle finger disability that he attributes to his active duty service. With regard to this claim for service connection, the determinative issues presented are (1) whether the veteran had a right middle finger disability during service; (2) whether he currently has a right middle finger disability; and if so, (3) whether his current right finger disability is etiologically related to his inservice right finger disability. Service medical records indicate that the veteran sought treatment in May 1987 for after "smashing" the third finger of his right hand in a car door. A radiologic report revealed "no evidence of fracture, dislocation, or other bone abnormality." The evidence shows that a 4-cm wound of the third finger of the right hand was sutured. A June 1987 treatment record indicates that the veteran was seen for a follow-up treatment three days following removal of his stitches. At that time, his wound was infected. In September 1987, the veteran complained of pain in the fingers of his right hand. Outpatient treatment record indicates that the veteran had full range of motion of his fingers. Similarly, no swelling or deformity was noted. While the evidence shows that the veteran injured his right middle finger during active service, a current disability of this finger is not shown. Post service medical records are silent for any treatment, complaint, or diagnosis of a disability of the middle finger of the right hand. The Board notes that the veteran, while entirely competent to report his symptoms both current and past, has presented no clinical evidence or medical opinion of a current disability of the right middle finger. In the absence of evidence indicating that the veteran has the medical knowledge or training requisite for the rendering of clinical opinions, the Board must find that his contentions with regard to the existence of any current disability of the right middle finger to be of no probative value. See Moray v. Brown, 5 Vet. App. 211 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Since, as previously discussed, service connection cannot be granted for a disease or disability that is not currently shown, the Board must find that the veteran has not submitted evidence sufficient to justify a belief by a fair and impartial individual at this time that service connection for a right middle finger disability could be granted, as is required under the provisions of 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999). See also Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992). The Board accordingly finds that the veteran's claim is not well grounded and is therefore denied, in accordance with the Court's decision in Edenfield v. Brown, 8 Vet. App. 384 (1995). With respect to the veteran's claims for service connection, the Board notes that the Court has held that, when a claimant fails to submit a well-grounded claim under 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999), VA has a duty under 38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1999) to advise the claimant of the evidence required to complete his or her application, in circumstances in which the claimant has referenced other known and existing evidence. Robinette v. Brown, 8 Vet. App. 69 (1995); see also Epps v. Brown, 9 Vet. App. 341 (1996) and McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997) (per curiam). A review of the claims folder does not show the veteran has referenced any material necessary to complete his application for compensation that is not already associated with the veteran's claims folder. The Board also notes that its duty to assist the veteran in the development of his claim, as stipulated in 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999), does not arise until a claim is shown to be well grounded. However, as the aforementioned claims are not well grounded, the duty to assist is not applicable. The Board must also point out that the veteran is free to submit new and material evidence, and reopen his claims for service connection, at any time. ORDER Service connection for a neck disability is denied. Service connection for a bilateral hearing loss disability is denied. Service connection for a left elbow disability is denied. Service connection for a middle finger disability of the right hand is denied. REMAND Increased rating claims are generally well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Once a claimant submits a well-grounded claim, VA must assist such a claimant in developing the facts pertinent to the claim. Whipp v. Principi, 3 Vet. App. 453 (1992). The duty to assist includes ordering a thorough and contemporaneous medical examination to determine the extent of the claimant's disability. The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet.App. 55, 58 (1994). The evidence shows that that the veteran's left ankle, left knee, left hip, and low back were last examined for compensation purposes in March 1996. The evidence shows that the veteran failed to report for a VA examination scheduled in December 1997; however, a review of the claims folders does not show that he was given notice of the time and place of the examination. Given the length of time since the last VA examination, the Board finds that the medical evidence of record is inadequate for rating purposes. Moreover, an examination is warranted to assess any functional limitation due to pain which may be present and the effects of any reported increases in pain or flare-ups resulting from activity. DeLuca v. Brown, 8 Vet. App. 202 (1995). Therefore, this case is REMANDED for the following actions: 1. The RO should request that the veteran identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him since March 1996 for his left ankle, left knee, left hip and low back disabilities. With any necessary authorization from the veteran, the RO should attempt to obtain copies of pertinent treatment records identified which have not been previously secured. 2. Then, the RO should schedule the veteran for a comprehensive VA orthopedic examination to determine the current severity of his left ankle, left knee, left hip and low back disorders. All indicated tests, including range of motion studies, must be conducted. The claims file must be made available to and reviewed by the examiner prior to the requested study. The examiner is asked to: a) identify on the face of the examination report that he or she has reviewed the veteran's claims folder prior to the examination. b) specify the nature and severity of the symptoms attributed to the veteran's service connected left ankle, left knee, left hip and low back disabilities. c) identify any objective evidence of pain or functional loss due to pain associated with the left ankle, left knee, left hip and/or low back and provide an opinion as to the extent that pain limits the functional ability of the veteran's left ankle, left knee, left hip and/or low back. The examiner should also be requested to determine whether, and to what extent the left ankle, left knee, left hip and low back exhibit weakened movement, excess fatigability, or incoordination. 3. Upon completion of the foregoing, the RO should review the claims folder and ensure that all of the development action has been conducted and completed in full. Specific attention is directed to the examination report. The Court has held that, if the requested examination does not include adequate responses to the specific opinions requested, the report must be returned for corrective action. 38 C.F.R. § 4.2 (1999) ("if the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes."). Green v. Derwinski, 1 Vet.App. 121, 124 (1991); Abernathy v. Principi, 3 Vet.App. 461, 464 (1992); Ardison v. Brown, 6 Vet.App. 405, 407 (1994). 5. The RO should then review the issue on appeal, if appropriate. If the decision remains adverse to the veteran, in whole or in part, he and his representative should be furnished a supplemental statement of the case and afforded the applicable period of time within which to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board. The Board expresses its gratitude in advance to the RO and the examining VA physicians for assisting in the requested development. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to obtain additional evidence. No inference should be drawn regarding the final disposition of this claim. The veteran is hereby informed that failure to cooperate with the requested development may have an adverse effect upon his claim. MARK W. GREENSTREET Member, Board of Veterans' Appeals