Citation Nr: 0006127 Decision Date: 03/07/00 Archive Date: 03/14/00 DOCKET NO. 95-17 979 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for a back disorder, claimed as secondary to service-connected multiple right leg fractures. 2. Entitlement to a compensable evaluation for residuals of a fracture of the mandible. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. M. Fogarty, Associate Counsel INTRODUCTION The veteran served on active duty from January 1986 to July 1986 and from August 1988 to February 1990, with evidence of active duty for training from July 1987 to January 1988. In an April 1997 decision, the Board of Veterans' Appeals (Board) remanded the issues of entitlement to service connection for a back disorder, claimed as secondary to service-connected multiple right leg fractures, and entitlement to a compensable evaluation for residuals of a fracture of the mandible to the Department of Veterans Affairs (VA) Los Angeles, California Regional Office (RO) for additional development of the record. A review of the record reflects that the requested development has been completed to the extent possible. Thus, the case has now been returned to the Board for appellate consideration. The Board notes that in an August 1999 rating decision, the RO determined that increased evaluations were not warranted for a fracture of the right femur, or a fracture of the right tibia and fibula with degenerative arthritis in the right knee. The RO also denied entitlement to service connection for a mental condition. The veteran has not filed a notice of disagreement as to that rating decision. FINDINGS OF FACT 1. Competent medical evidence of a current diagnosis of a back disorder has not been presented. 2. Residuals of a fracture of the mandible consist of no more than subjective complaints of left jaw pain and jaw locking, without objective findings of limited motion of temporomandibular articulation, interference with mastication or speech, or more than slight displacement of the mandible. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a back disorder, claimed as secondary to service-connected multiple right leg fractures, is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for a compensable evaluation for residuals of a fracture of the mandible have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.150, Diagnostic Code 9905 (1992); 38 C.F.R. § 4.150, Diagnostic Codes 9904, 9905 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter, "the Court") has held that there is a duty to assist a veteran in the completion of his application for benefits under 38 U.S.C.A. § 5103(a) (West 1991), depending on the particular facts in each case. Beausoleil v. Brown, 8 Vet. App. 459 (1996); Robinette v. Brown, 8 Vet. App. 69 (1995). The facts and circumstances of this case are such that no further action is warranted. Factual Background Service medical records reflect the veteran suffered a closed fracture of the right tibia and fibula and a right femur fracture in November 1988. The records also reflect the veteran suffered a comminuted fracture of the mandible in December 1987. A March 1989 clinical record reflects a complaint of back pain after cast removal and an assessment of back pain probably secondary to use of leg out of plaster. Complaints of intermittent back pain were also noted in a February 1990 clinical record. Upon VA examination dated in September 1990, mild dorsal scoliosis was noted. The report is silent for complaints relevant to the back or jaw. Relevant VA treatment records dated from 1990 to 1993 reflect a complaint of low back pain in January 1991. An assessment of healed fractures within acceptable limits was noted. A VA examination dated in February 1993 reflects relevant complaints of back pain and a locking jaw. It was noted that the veteran's gait was within normal limits and without significant limp. An impression of status posts pedestrian versus motor vehicle accident with healed fractures of the femur and right tibia was noted. It was also noted there was no clinical difference in limb length as well as no radiographic evidence of post-traumatic degenerative changes of the right knee, right ankle, or hip. A valgus deformity of a minimal degree from the healed tibia fracture was noted. At his March 1996 hearing before a member of the Board, the veteran testified that his leg was not properly repaired and threw his back out. (Transcript, page 2). The veteran stated that one leg was longer than the other and that he had experienced lower back pains since breaking his leg. (Transcript, page 3). The veteran also reported stiffness in his back as well as muscle spasm. (Transcript, pages 4-5). The veteran testified that he had twitching in his face and his jaw tired quickly. (Transcript, page 7). He stated that his bite was off, that his jaw had been wired crooked, and that his jaw locked. (Transcript, pages 8-9). VA treatment records dated from 1996 to 1998 reflect a complaint of back pain in August 1997. Upon VA orthopedic examination dated in April 1999, the veteran complained of intermittent upper and lower back pain. The frequency of the pain was noted as not known. No radicular pain was noted from the upper back to the lower back. The veteran also complained of pain in the neck, right shoulder, hip, knee, ankle, and foot. The veteran described his pain as dull and sharp with aggravating factors of prolonged standing. Measurements of leg lengths were noted as 109 centimeters on the right and 108 centimeters on the left. A slight limp favoring the right lower extremity was noted. Heel and toe walking were noted as normal with slight external rotation of the right lower extremity. The examiner noted no scoliosis. Palpation of the paravertebral muscles revealed no muscle spasm or tenderness. Percussion over the spinous processes did not produce any pain in the cervical spine. It was also noted the veteran did not express any pain upon reaching the extremes of range of motion. The examiner noted the veteran had full flexion, extension, lateral bending, and rotation in the back and lower extremities. Radiographic reports revealed normal lordosis and no degenerative changes in the lumbar spine. Slight convexity toward the right was noted. Diagnoses of residual valgus malunion of a right tibia/fibula fracture, degenerative arthritis of the right knee, and residuals of a fracture of the right femur were noted. The examiner noted the veteran had slight external rotation of the right lower leg and walked with external rotation. The examiner further noted that with the exception of this deformity, there were no positive objective findings at that time with regard to the back, hips, and feet. It was also noted there were no neurological deficits. X-rays of the lumbar spine were noted as fairly normal. Finally, the examiner opined that based upon his clinical examination of the back, hips, and feet, as well as x-rays, there were no pathological findings at that time, and the veteran's subjective complaints of pain in the back, hips, and feet were not supported by any positive objective findings. Upon VA dental examination dated in April 1999, the veteran complained of left jaw pain with eating and jaw locking upon wide opening, eating, or kissing. The veteran also reported a nocturnal jaw clenching habit. It was noted that the veteran denied difficulty with his tongue, taste, lip movement, or teeth. He also denied any significant headache with jaw pain or any actual temporomandibular joint pain. Upon physical examination, maximum opening was noted as 50 millimeters, overbite was zero millimeters, and overjet was zero millimeters. Lateral shifting was noted as 8 millimeters to the right and 8 millimeters to the left. Protrusion at the midline was noted at 7 millimeters. All ranges were painlessly performed. The examiner noted there was no deviation or deflection with mandibular motion. It was noted that a mild left opening click occurred at 50 millimeters as the condyle reached the apex of the articular eminence. Auscultation of the right temporomandibular joint did not reveal any abnormal joint sounds. The examiner noted that despite numerous attempts and various maneuvers, the veteran's jaw-locking complaint could not be reproduced. Diminished vibratory sense over the area of the left mental nerve foramen was noted. Palpation of the muscles of mastication was unremarkable and the temporomandibular joints were not painful upon examination. A bilateral oblique mandible series was noted as normal. The examiner noted the surgical wire in the left mandible was shown to the veteran with reassurance of its benign status. A diagnosis of residuals of a fracture of the mandible was noted. The examiner noted the nature of the left temporomandibular joint locking was explained to the veteran and the role of his malocclusion was explained as it related to his complaint of a "shifting bite." The examiner noted the veteran's clinical presentation was quite benign and there was no clinically significant pathology underlying his jaw complaint. The examiner noted that although the left jaw pain was not present upon examination, it sounded myofascial in nature and might be reflective of the veteran's jaw clenching habit. Analysis I. Back Disorder Basic entitlement to disability compensation may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1131 (West 1991). Service connection connotes many factors but basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303(a) (1999). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (1999). In order to show that a disability is proximately due to or the result of a service-connected disease or injury, the veteran must submit competent medical evidence showing that the disabilities are causally-related. Jones v. Brown, 7 Vet. App. 134, 137 (1994). However, in making any claim for service connection, the veteran has the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). A well-grounded claim is "a plausible claim, one which is meritorious on it own or capable of substantiation." See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If a well-grounded claim has not been presented, the veteran's 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. at 81 (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 a current disability (a medical diagnosis); of the incurrence or aggravation of a disease or injury in service (or as the result of a service-connected condition) supported by lay or medical evidence; and of a nexus between the in-service (or service-connected) injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). 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. Lay assertions of medical causation 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. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Following a thorough review of the evidence of record, the Board concludes that service connection for a back condition, claimed as secondary to service-connected multiple right leg fractures, is not warranted. Although the record reflects some complaints of back pain, the record is silent for competent medical evidence of a current diagnosis of a back disorder. In fact, upon VA orthopedic examination dated in April 1999, the examiner noted the veteran's subjective complaints of pain in the back, hips, and feet were not supported by any objective findings. The Board also notes that even assuming the record was sufficient to establish a current back disorder, the veteran has failed to present competent medical evidence showing that a back disorder is related to his service- connected multiple right leg fractures. Unfortunately, the claim of entitlement to service connection for a back disorder, claimed as secondary to multiple right leg fractures, is supported solely by the contentions of the veteran. However, the Court has made it clear that a lay party is not competent to provide probative evidence as to matters requiring expertise regarding specialized medical knowledge, skill, training, or education. Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1994). Consequently, the veteran's lay assertion that he suffers from a back disorder caused or aggravated by his service-connected right leg fractures is neither competent nor probative of the issue in question. While the veteran is competent to testify as to symptomatology, he is not competent to diagnose his own disability or its etiology. See Cromley v. Brown, 7 Vet. App. 376, 379 (1995); Boeck v. Brown, 6 Vet. App. 14, 16 (1993); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Fluker v. Brown, 5 Vet. App. 296, 299 (1993); Moray v. Brown, 5 Vet. App. 211, 214 (1993); Cox v. Brown, 5 Vet. App. 93-95 (1993); and Clarkson v. Brown, 4 Vet. App. 565, 657 (1993). Thus, in the absence of competent medical evidence of a current diagnosis of a back disorder or of a nexus between a current disability and service or a service-connected disability, the claim for service connection for a back disorder is not well grounded and must be denied. Rabideau v. Derwinski, 2 Vet. App. 141 (1992). II. Residuals of Fracture of the Mandible Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4 (1999). The percentage ratings contained in the Rating Schedule represent, as far as can be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1 (1999). Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include 38 C.F.R. §§ 4.1 and 4.2 (1999) which require the evaluation of the complete medical history of the claimant's condition. These regulations operate to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath, 1 Vet. App. at 593-94 (1991). 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2 (1999). Malunion of the mandible is rated pursuant to 38 C.F.R. § 4.150, Diagnostic Code 9904 (1999). Pursuant to that regulation, a noncompensable evaluation is warranted for slight displacement. Moderate displacement warrants a 10 percent evaluation and severe displacement warrants a 20 percent evaluation. It is noted that the rating is dependent upon degree of motion and relative loss of masticatory function. VA regulations also establish criteria for the evaluation of limited motion of temporomandibular articulation. Pursuant to 38 C.F.R. § 4.150, Diagnostic Code 9905 (1999), an inter- incisal range of zero to 10 millimeters warrants a 40 percent evaluation. An inter-incisal range of 11 to 20 millimeters warrants a 30 percent evaluation. A 20 percent evaluation is warranted for an inter-incisal range of 21 to 30 millimeters. An inter-incisal range of 31 to 40 millimeters warrants a 10 percent evaluation. A range of lateral excursion of zero to 4 millimeters warrants a 10 percent evaluation. It is noted that ratings for limited inter-incisal movement shall not be combined with ratings for limited lateral excursion. The Board notes that the Court has held that where the law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308 (1991). Portions of the rating criteria regarding dental and oral conditions were revised effective February 17, 1994. The veteran originally filed his claim for an increased evaluation in May 1993. The criteria regarding malunion of the mandible were not revised; however, the criteria regarding limited motion of temporomandibular articulation were revised. Thus, the Board must consider both the old and the new criteria for that diagnostic code. Pursuant to the criteria in effect prior to February 17, 1994 regarding limited motion of temporomandibular articulation, motion limited to 1/4 inch (6.3 millimeters) warrants a 40 percent evaluation. A 20 percent evaluation is warranted for motion limited to 1/2 inch (12.7 millimeters). Any definite limitation interfering with mastication or speech warrants a 10 percent evaluation. 38 C.F.R. § 4.150, Diagnostic Code 9905 (1992). A review of the relevant evidence of record reflects no competent medical evidence of compensable limited motion of the temporomandibular articulation. In the absence of competent medical evidence of a limited inter-incisal range of 31 to 40 millimeters or less, or a limited lateral excursion of zero to 4 millimeters, a compensable evaluation pursuant to 38 C.F.R. § 4.150, Diagnostic Code 9905 (1999) is not warranted. The record is further silent for competent medical evidence of any limitation interfering with mastication or speech, or of motion limited to 1/2 inch or less. In the absence of such evidence, a compensable evaluation under 38 C.F.R. § 4.150, Diagnostic Code (1992) is also not warranted. Additionally, the record is silent for competent medical evidence of moderate or severe displacement of the mandible. Upon VA dental examination dated in April 1999, the examiner noted lateral shifting to the right of 8 millimeters and to the left of 8 millimeters. It was noted there was no deviation or deflection of mandibular motion. The examiner noted the veteran's clinical presentation was benign and there was no clinically significant pathology underlying his jaw complaint. Thus, in the absence of competent medical evidence of moderate or severe displacement of the mandible or relative loss of masticatory function, a compensable evaluation pursuant to 38 C.F.R. § 4.150, Diagnostic Code 9904 is not warranted. ORDER Entitlement to service connection for a back disorder, claimed as secondary to service-connected multiple right leg fractures, is denied. Entitlement to a compensable evaluation for residuals of a fracture of the mandible is denied. John E. Ormond, Jr. Member, Board of Veterans' Appeals