Citation Nr: 0005187 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-15 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a left thigh disorder. 2. Entitlement to service connection for a left leg disorder. 3. Entitlement to a disability rating in excess of 20 percent for rheumatoid arthritis of multiple joints with degenerative changes. 4. Entitlement to a compensable disability rating for the residuals of a fracture of the right wrist. 5. Entitlement to a compensable disability rating for an appendectomy scar. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. W. Fabian, Counsel INTRODUCTION The veteran had active duty from February 1946 to February 1950. These matters come to the Board of Veterans' Appeals (Board) from a December 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO denied entitlement to the benefits shown on the title page. The veteran perfected an appeal of that decision. The issues of entitlement to compensable disability ratings for the appendectomy scar and the residuals of a right wrist fracture, as well as an increased rating for arthritis of multiple joints, will be addressed in the remand portion of this decision. FINDING OF FACT The claims of entitlement to service connection for left thigh and left leg disorders are not supported by competent medical evidence showing that the veteran currently has left thigh or leg disorders. CONCLUSION OF LAW The claims of entitlement to service connection for left thigh and left leg disorders are not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION The threshold question that must be resolved with regard to the claims is whether the veteran has presented evidence that the claims are well grounded. 38 U.S.C.A. § 5107(a); Epps v. Brown, 9 Vet. App. 341 (1996), aff'd, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 118 S.Ct. 2348 (1998). A well grounded claim is a plausible claim, meaning a claim that appears to be meritorious on its own or capable of substantiation. Epps, 126 F.3d at 1468. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). In order for a claim for service connection to be well grounded, there must be a medical diagnosis of a current disability, medical or lay evidence of the incurrence of a disease or injury in service, and medical evidence of a nexus between the in-service disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Alternatively, the second and third elements can be satisfied by evidence showing that a disorder was noted during service or any applicable presumptive period, evidence of post- service continuity of symptomatology, and medical or, in some circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. In addition, if the claim for service connection pertains to a disease rather than the residuals of an injury, a well-grounded claim can be established by evidence showing a chronic disease in service or during any applicable presumptive period and present disability from that disease. See Savage v. Gober, 10 Vet. App. 488, 495-497 (1997); 38 C.F.R. § 3.303(b). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Therefore, if the determinant issue is one of medical etiology or a medical diagnosis, competent medical evidence is generally required to make the claim well grounded. See Grottveit, 5 Vet. App. at 93. A lay person is, however, competent to provide evidence of an observable condition during and following service. Savage, 10 Vet. App. at 496. If the claimed disability relates to an observable disorder, lay evidence may be sufficient to show the incurrence of a disease or injury in service and continuity of the disorder following service. Medical evidence is required, however, to show a relationship between the current medical diagnosis and the continuing symptomatology. See Clyburn v. West, 12 Vet. App. 296 (1999). In determining whether the claim is well grounded, the evidence is generally presumed to be credible. See Arms v. West, 12 Vet. App. 188 (1999). The veteran's representative contends that pursuant to the Veterans Benefits Administration Manual M21-1 (M21-1), VA has a duty to assist the veteran in developing the evidence relevant to his claim, regardless of whether the claim is well grounded. The veteran's representative further contends that the M21-1 provisions indicate that the claim must be fully developed prior to determining whether the claim is well grounded, and requests that the claim be remanded in order to fulfill this duty to assist. In Morton v. West, 12 Vet. App. 477 (1999), the Court of Appeals for Veterans Claims (formerly the Court of Veterans Appeals) (Court) held that the Manual M21-1 provisions pertaining to the development of claims prior to a finding of well groundedness are interpretive, in that they do not relate to whether a benefit will be allowed or denied, nor do they impinge on a benefit or right provided by statute or regulation. The Court found that the Manual M21-1 provisions constituted "administrative directions to the field containing guidance as to the procedures to be used in the adjudication process," and that the policy declarations did not create enforceable rights. The Court also found that interpretive provisions that are contrary to statutes are not entitled to deference, and that in the absence of a well- grounded claim VA could not undertake to assist a veteran in developing the facts pertinent to the claim. The Board is required to follow the precedent opinions of the Court. 38 U.S.C.A. § 7269; see also Tobler v. Derwinski, 2 Vet. App. 8, 14 (1991). The Board has determined, therefore, that, in the absence of a well-grounded claim, VA has no duty to assist the veteran in developing his case. Although VA is under no duty to assist the veteran in the absence of a well-grounded claim, VA may, dependent on the facts of the case, have a duty to notify him of the evidence needed to support his claim. 38 U.S.C.A. § 5103; see also Robinette v. Brown, 8 Vet. App. 69, 79 (1995). The veteran has not indicated the existence of any evidence that, if obtained, would make his claim well grounded. VA has no further obligation, therefore, to notify him of the evidence needed to support his claim. See McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997). The veteran's service medical records are silent for any complaints or clinical findings pertaining to a left thigh or left leg disorder, with the exception of pain in the left knee and a complaint of excessive sweating in both thighs, which were attributed to rheumatoid arthritis. Service connection has been previously established for rheumatoid arthritis. He was provided a VA orthopedic examination in February 1952, which revealed no abnormality of the left lower extremity. VA treatment records show that in April 1987 the veteran complained of pain in the left lower extremity from the hip to the calf of one day in duration. Following an examination the treating physician attributed the symptoms to questionable sciatic neuritis or lumbosacral strain. An X-ray study of the pelvis and hips in May 1991 showed early hypertrophic degenerative changes in both hips, but resulted in no findings pertaining to the left thigh. The veteran received treatment in the VA podiatry clinic in November 1991, at which time the treating physician noted that the veteran had diabetes mellitus, and that he had slight atrophic changes in both lower legs. The veteran was again provided a VA orthopedic examination in May 1992, which revealed no abnormalities pertaining to the left thigh or left leg. VA treatment records also show that in September 1997 a lipoma was excised from the skin on the left thigh. In September 1997 the veteran's treating physician also assessed his complaints of pain in the left heel as calcaneal bursitis. The veteran claimed entitlement to service connection for the "left leg and thigh" in September 1997, but he did not describe the specific complaint or abnormality for which he was seeking service connection. He made no specific contentions in his notice of disagreement or substantive appeal. The Board has reviewed the evidence of record and finds that the claims of entitlement to service connection for a left thigh and left leg disorder are not well grounded. His complaint of pain in the left lower extremity in April 1987 was attributed to questionable sciatic neuritis or lumbosacral strain, not a left thigh or left leg disorder. A definitive diagnosis of sciatic neuritis or lumbosacral strain was not made, the VA treatment records since April 1987 do not document that the veteran currently has sciatic neuritis or lumbosacral strain, and the complaints documented 10 years prior to the initiation of the veteran's claim are not sufficient to establish that he currently has that disorder. See Degmetich v. Brown, 104 F3d. 1328 (Fed. Cir. 1997) (the veteran must currently have the claimed disability to warrant service connection). Although the evidence shows that the veteran had a lipoma removed from the left thigh in September 1997, his service medical records are negative for any abnormality pertaining to the left thigh and he has provided no evidence indicating that the lipoma is related to an in-service disease or injury. In the absence of evidence showing that the currently diagnosed disability is related to service, the claim of entitlement to service connection for a left thigh disorder is not well grounded. Boyer v. West, 11 Vet. App. 477 (1998), aff'd on reh'g, 12 Vet. App. 142 (1999). The veteran has not provided any medical evidence documenting a current medical diagnosis of disability pertaining to the left leg or thigh. Although the treating physician in November 1991 found that the veteran had slight atrophic changes in both lower legs, he/she did not attribute that clinical finding to a specific medical diagnosis of disability. The orthopedic examination in May 1992 revealed no abnormalities pertaining to the left leg, and the VA treatment records since May 1992 do not document a medical diagnosis of disability pertaining to the left leg. See Kessel v. West, 13 Vet. App. 9 (1999) (the veteran must submit evidence showing that he currently has the claimed disability). The calcaneal bursitis diagnosed in September 1997 pertains to the ankle, not the leg, and there is no evidence of record indicating that the calcaneal bursitis is related to an in-service disease or injury. While the veteran would be competent to report a left leg or thigh injury in service, he has not done so. The veteran has presented no other evidence of the incurrence of a left leg disease or injury in service. Even if the record could be read as showing a current left leg or thigh disability, there is no medical evidence showing that the clinical findings pertaining to the left leg and thigh are related to an in- service disease or injury. Boyer, 11 Vet. App. at 477. The Board has determined, therefore, that the claims of entitlement to service connection for a left thigh and left leg disorder are not well grounded. ORDER The claims of entitlement to service connection for a left thigh and left leg disorder are denied. REMAND The veteran's service medical records show that in May 1946 he incurred a carpal scaphoid fracture of the right wrist, which was treated by casting. In May 1948 he underwent an appendectomy due to acute appendicitis. The service medical records do not document any residuals of the right wrist fracture or the appendectomy. The service medical records also show that the veteran was hospitalized in May 1949 with complaints of pain in his knees, wrists, elbows, and shoulders, which was initially assessed as rheumatic fever. Following diagnostic testing and further treatment, the diagnosis was revised to chronic rheumatoid arthritis. The veteran claims to have pain in his stomach, which he relates to the in-service appendectomy. His most recent examination of record, which was conducted in May 1992, revealed no residuals of the appendectomy. The veteran asserts that his disability has worsened. In addition, he claims to have pain in the right wrist due to the in-service fracture. The VA has a duty to assist the veteran in the development of facts pertinent to his claims. 38 U.S.C.A. § 5107(a) (West 1991). The fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. Floyd v. Brown, 9 Vet. App. 88 (1996), appeal dismissed per curiam 9 Vet. App. 253 (1996). The veteran has not been provided a VA examination in connection with his current claims for increased ratings. To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to his claims, these issues are REMANDED to the RO for the following development: 1. The RO should obtain the names and addresses of all medical care providers, inpatient and outpatient, VA and private, who treated the veteran for any musculoskeletal or stomach disorder since September 1997. After securing the necessary release, the RO should obtain copies of such records that are not in file. 2. The veteran should be afforded an appropriate examination for the purpose of determining all of the joints affected by rheumatoid arthritis and a description of all of the manifestations of that disorder. The claims folder MUST be made available to the examiner for review before the examination. The examination should include any tests or studies, including X-ray or MRI, deemed necessary for an accurate assessment. The examiner should conduct a thorough orthopedic examination of all of the joints, including the spine, and provide a diagnosis for any pathology found. If the examiner finds evidence of degenerative arthritis in any joint, he/she should provide an opinion, based on the available evidence and sound medical principles, on whether the degenerative arthritis in that joint is etiologically related to the rheumatoid arthritis that occurred in service. The examiner should document any limitation of motion in each and every joint affected by degenerative arthritis, including any limitation of motion due to pain. The examiner should also describe any anatomical damage to the joints and describe any functional loss, including the inability to perform normal working movements of the joints with normal excursion, strength, speed, coordination, and endurance. The examiner should also be asked to evaluate any functional loss due to pain or weakness, and to document all objective evidence of those symptoms. In addition, the examiner should provide an opinion on the degree of any functional loss that is likely to result from a flare-up of symptoms or on extended use and not limit his/her evaluation of disability to a point in time when the symptoms are quiescent. The examiner should also document, to the extent possible, the frequency and duration of exacerbations of symptoms. The examiner should also be asked to provide an opinion on whether the veteran's complaints of pain and any demonstrated limitation of motion are supported by the objective evidence of joint pathology. If not otherwise documented, the examiner should also determine all of the residuals of the right wrist fracture, including all functional limitations. 3. The veteran should also be afforded an appropriate medical examination to determine the residuals, if any, of the in-service appendectomy. The claims file and a copy of this remand should be made available to and be reviewed by the examiner in conjunction with the examination. The examination should include any diagnostic tests or studies, including X-ray studies, that are deemed necessary for an accurate assessment. Based on the examination, the examiner should document all of the residuals of the in-service appendectomy. The examiner should provide an opinion on the etiology of the veteran's complaints of abdominal pain, specifically on whether his complaints are due to the in-service appendectomy. The examiner should also determine whether the residual surgical scar is poorly nourished and ulcerated, tender and painful on objective demonstration, or whether it results in any functional limitations. 4. The RO should then review the claims file to ensure that all of the above requested development has been completed. In particular, the RO should ensure that the requested examinations and opinions are in complete compliance with the directives of this remand and, if they are not, the RO should take corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After undertaking any additional development deemed appropriate in addition to that requested above, the RO should re-adjudicate the issue of entitlement to compensable disability ratings for the residuals of a right wrist fracture and the appendectomy. The RO should also determine the specific joints affected by degenerative arthritis for which service connection is warranted, and include each joint in the definition of the service-connected disability. The RO should also consider separate and distinct disability ratings for each service-connected joint. If any benefit requested on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case that includes all of the relevant diagnostic codes and rating criteria applicable to each affected joint. The veteran and his representative should then 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 has the right to submit additional evidence and argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is advised that the examinations requested in this remand are necessary to adjudicate his claims, and that a failure without good cause to report for scheduled examinations, could result in the denial of his claims. 38 C.F.R. § 3.655 (1999). 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 Appeals for Veterans Claims 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. 1999) (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