Citation Nr: 0003755 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 94-37 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a disorder of the eyes. 2. Entitlement to an original evaluation in excess of 10 percent for tendonitis and arthritis of the right shoulder. REPRESENTATION Appellant represented by: Washington Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran had active service from February 1967 to August 1993. This appeal arises from a July 1994 rating decision of the Seattle, Washington, Department of Veterans Affairs (VA) regional office (RO), which denied entitlement to service connection for a disorder of the eyes and granted service connection for tendonitis of the right shoulder, evaluated as noncompensable. The grant of service connection and the noncompensable evaluation for the right shoulder disability were made effective the day following separation from service, September 1, 1993. In a rating decision dated in April 1995, a hearing officer granted a 10 percent evaluation for the right shoulder disability effective September 1, 1993. This case was previously before the Board in June 1996, when it was remanded for additional development. That development was undertaken and the case has been returned to the Board for further consideration. FINDINGS OF FACT 1. There is no competent evidence of a nexus between any current eye disability and service. 2. Arthritis and tendinitis of the right shoulder are manifested by pain to resisted abduction at 90 degrees, and X-ray evidence of degenerative changes without limitation of motion. CONCLUSIONS OF LAW 1. The claim for service connection for a disability of the eyes is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. An evaluation in excess of 10 percent for arthritis and tendinitis of the right shoulder is not warranted for any period since the effective date of the grant of service connection for that disability. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Eye Disability The threshold question to be answered is whether the appellant has presented evidence of a well grounded claim, that is, a claim which is plausible and meritorious on its own or capable of substantiation. If he has not, his appeal must fail and the Board has no duty to further assist him with the development of his 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); see also Epps v. Gober, 126 F.3d 1464 (1997) cert. denied 118 S.Ct. 2348 (1998). Under the provisions of 38 C.F.R. § 3.303(b), chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. 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." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) 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. The second and third Caluza elements can also be satisfied under 38 C.F.R. § 3.303(b) (1998) by (a) evidence that a condition was "noted" during service or during an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Clyburn v. West, 12 Vet. App. 296 (1999); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); 38 C.F.R. § 3.303(b). Alternatively, service connection may be established under § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Brewer v. West, 11 Vet. App. 228, 231 (1998). 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. Sacks v. West, 11 Vet. App. 314, 315 (1998); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Lay assertions of medical causation or diagnosis cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. Evidentiary assertions accompanying a claim for VA benefits must be accepted as true for purposes for determining whether the claim is well grounded, unless the evidentiary assertion is inherently incredible or the fact asserted is beyond the competence of the person making the assertion. King v. Derwinski, 5 Vet. App. 19, 21 (1993). Analysis The veteran's service medical records show that in February 1968 he was seen with a complaint that his eye felt swollen and painful to touch. Ocular movements were intact, and the fundi were negative. He was able to adequately visualize. In September 1969, it was determine that glasses were not needed. In March 1971, he reportedly had a small speck of dust in the right eye, which was removed. No further treatment was recommended and he was to return to the clinic if his vision was not completely clear. In January 1972, he complained that his distant vision was blurred. In February 1982, he was noted to have multiple dust like opacities in both eyes, which were not considered disabling. In June 1985 he was assessed as having a possible dust particle in the right eye. The eye was irrigated and he reportedly obtained relief. In November 1985 he was afforded a routine examination and was provided eyeglasses. In April 1987, he was found to have an accommodative dysfunction. In October 1989, the veteran complained of left eye redness and pain. The assessment was conjunctivitis, which was possibly bacterial. In a report of medical history completed for separation from service in March 1993, the veteran reported that he had no eye trouble. It was noted that he wore glasses, but this was not considered disabling. On examination for separation from service in March 1993, the eyes were normal. The service medical records satisfy the second prong of the Caluza test--competent evidence of a disease or injury in service. Examinations subsequent to service satisfy the first prong of the Caluza test. On examination in January 1995, a diagnosis of peripheral retinal degeneration was reported. The absent element in the veteran's claim is any competent evidence of a nexus between a current eye disability and service. Examiners in March 1994 and August 1998, noted that there had been no sequelae from the removal of foreign bodies in the veteran's eyes during service. The examiner conducting the August 1998 examination specifically concluded that the current peripheral retinal degeneration was unrelated to service. There is no other competent medical evidence of a nexus between a current eye disability and service. The veteran's contentions could be read as asserting a continuity of symptomatology since service. However, there is no competent evidence relating that continuity to a current diagnosis. In the absence of competent evidence of a nexus between a current eye disorder and service, the claim is not well grounded and must be denied. The veteran's representative has questioned the examiner's conclusion that the current retinal degeneration was unrelated to service. The representative asserts that the examiner did not give reasons for this opinion. Regardless, of whether the examiner provided reasons for the opinion, the burden is on the veteran at this point to provide competent evidence of a nexus, and VA does not have a duty to assist him with the development of his claim by affording him adequate examinations. See Roberts v. West, No. 97-1057 (U.S. Vet. App. Nov. 19, 1999). Right Shoulder Disability 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. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Court held in Francisco v. Brown, 7 Vet. App. 55, 58 (1994), that "[c]ompensation for service-connected injury is limited to those claims which show present disability" and held: "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." More recently the Court has held that the above rule is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings. Fenderson v. West, at 126. With these principles in mind, the Board will consider whether the veteran was entitled to an evaluation in excess of 10 percent during any period since service connection was established. The Court has held that, when a diagnostic code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 (1996) must also be considered, and that examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare-ups." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40 (1999). The veteran's right shoulder disability is currently evaluated under the provisions of Diagnostic Code 5010, which provides that traumatic arthritis will be evaluated on the same criteria as degenerative arthritis under Diagnostic Code 5003. The disability is also rated under the provisions of Diagnostic Code 5024, which provide that tenosynovitis will be evaluated under the provisions of Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis is to be rated on the basis of limitation of motion of the affected joint under the appropriate diagnostic code for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code, a rating of 10 percent is for application for each such major joint group or minor joint group affected by limitation of motion. Limitation of motion of the major arm to 25 degrees or less from the side warrants a 40 percent evaluation. Limitation of motion of the major arm to midway between the side and shoulder level warrants a 30 percent evaluation. Limitation of the major arm to shoulder level warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5201 (1999). As regards the joints the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) Less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.). (b) More movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.). (c) Weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.). (d) Excess fatigability. (e) Incoordination, impaired ability to execute skilled movements smoothly. (f) Pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. 38 C.F.R. § 4.45 (1999). In the instant case the veteran has been afforded a number of VA examinations between July 1994, and February 1997, on all of those examinations the veteran was able to raise his right arm to above the shoulder level, without pain (although crepitus was reported on one occasion). Given that the veteran has essentially full range of motion in the right shoulder without pain, and few other indications of functional impairment, he does not meet the criteria for an evaluation in excess of 10 percent under the pertinent diagnostic codes discussed above. The veteran's hearing testimony suggests that he experiences limitation of motion with considerable pain. However, these findings have not been confirmed on any of the several examinations afforded the veteran since service. Therefore, the Board concludes that the weight of the evidence is against the claim for a higher original rating at any time since the effective date of the grant of service connection. ORDER Entitlement to service connection for a disorder of the eyes is denied. Entitlement to an original evaluation in excess of 10 percent for tendonitis and arthritis of the right shoulder is denied. Mark D. Hindin Member, Board of Veterans' Appeals