Citation Nr: 0002994 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 97-32 052 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a left arm disability. 2. Entitlement to a rating in excess of 10 percent for a right knee disability. 3. Entitlement to a compensable rating for a left index finger disability. 4. Entitlement to rating in excess of 10 percent for scar of the left arm (major). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Ferrandino, Associate Counsel INTRODUCTION The veteran had active service from December 1984 to December 1988. The veteran filed a claim in January 1997 for service connection for a right knee disability, a left arm biceps injury with scar, a left index finger disability, and a right index finger disability. This appeal arises from the May 1997 rating decision from the Hartford, Connecticut Regional Office (RO) that denied the veteran's claim for service connection for left arm muscle strain; granted service connection for residuals of a right knee injury, with an evaluation of 0 percent; granted service connection for a left arm laceration scar, with an evaluation of 0 percent; granted service connection for a left index finger injury, with an evaluation of 0 percent; and granted service connection for a right index finger injury with an evaluation of 0 percent. A Notice of Disagreement was filed in August 1997 and a Statement of the Case was issued in September 1997. A substantive appeal was filed in October 1997 with a request for a hearing at the RO before a local hearing officer. In January 1998, the abovementioned RO hearing was held. By rating decision in May 1998, the RO increased the evaluation for the veteran's service connected residuals of a right knee injury from 0 percent to 10 percent and increased the evaluation of the veteran's service connected left arm laceration scar from 0 percent to 10 percent. The veteran has continued his appeal of these ratings. At the January 1998 RO hearing, the veteran indicated that he was withdrawing his appeal as to the issue of a compensable rating for a right index finger injury. Therefore, that issue is no longer before the Board. The issue of entitlement to a rating in excess of 10 percent for residuals of a right knee injury and the issue of entitlement to a compensable rating for a left index finger injury are the subjects of the Remand decision below. FINDINGS OF FACT 1. The veteran has presented no competent evidence to show that he currently has left arm muscle strain. 2. The veteran's claim of entitlement to service connection for a left arm muscle strain is not plausible. 3. All relevant evidence necessary for an equitable disposition of the appeal as to the issue of entitlement to a rating in excess of 10 percent for a left arm laceration scar has been obtained by the RO. 4. The manifestations of the veteran's left arm laceration scar do not equate to severe incomplete paralysis or paralysis or severe neuralgia or neuritis. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for left arm muscle strain is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for the assignment of a rating in excess of 10 percent for a left arm laceration scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4,118, 4.123, 4.124, 4.124a, Diagnostic Codes 7804, 7805, 8517, 8617, 8717 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Factual Background On a service enlistment examination in no history of painful or "trick" shoulder or elbow was reported. On examination, the veteran's upper extremities were clinically evaluated as normal. In October 1986, the veteran was seen for treatment for a laceration of the left posterior upper arm caused by lacerating his arm on a metal band of a locker. On examination, there was a 6 cm laceration with sharp edges. There was no debris. No fascia was visible, and no muscle fibers were seen. The skin and fat were cut to approximately 0.5 cm. The wound was closed with 30 stitches. The assessments/diagnoses included superficial laceration left posterior upper arm. Three days later in October 1996, the veteran was seen for removal of sutures. There were no signs of infection. He returned the same day with complaints that the wound had reopened. The would was cleaned and the dressing changed. In January 1997, the veteran filed a claim for disabilities to include left arm biceps injury with scar. On a VA examination in May 1997, the veteran reported suffering a laceration of the back of the left arm in service and had 32 stitches done for superficial laceration not involving the triceps muscles. It left him with a scar because of the stitching, but no limitation of movement. On examination, the veteran was noted to be left handed. There was a scar over the left triceps area from previous stitches. The diagnoses included status post 32 stitches on the back of left arm with a scar, but no limitation of movements. By rating action of May 1997, service connection for a left arm muscle strain was denied and service connection for left arm laceration scar was granted with an evaluation of 0 percent. The current appeal to the Board arises from this action. At the RO hearing in January 1998, the veteran testified that he had a scar on the biceps side of his left arm. He had about 32 stitches. He was able to put his arms out straight and raise them at the March 1997 VA examination. He reported that he could not get to full extension with his left arm and had a physical profile for this in the service. He currently had problems with pain when he used the triceps muscle. He stated that the scar had shrunk over the years. There was a little bit of skin coloration. There was an area of depression around the scar that seemed to be muscle damage. The scar was tender. On a VA examination in March 1998, the veteran reported that he had a laceration of the left upper arm in service. He currently had an occasional feeling of numbness in the area on doing certain activities. On examination, there was a 21/4 x 1/4 inch wide transverse scar in the posterior distal 1/3 of the humerus area. There was hypesthesia just distal to the scar and a positive Tinel's sign. Tinel's sign is a tingling sensation in the distal end of a limb when percussion is made over the site of a divided nerve. It indicates a partial lesion or the beginning regeneration of the nerve. Dorland's Illustrated Medical Dictionary, 1527 (28th ed. 1994). The triceps muscle was intact. There was normal range of motion of the elbow. The diagnoses included scar, posterior aspect, distal left upper arm, and neuropathy, left distal humerus area posteriorly with a positive Tinel's sign indicating an injury to a cutaneous nerve in the area due to the laceration that he incurred that caused the abovementioned scar. II. Analysis A. Service connection Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting such service, was aggravated by service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). A claimant seeking benefits under a law administered by the Secretary of the Department of Veteran Affairs shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The Secretary has the duty to assist a claimant in developing facts pertinent to the claim if the claim is determined to be well grounded. 38 U.S.C.A. § 5107(a). Thus, the threshold question to be answered is whether the veteran has presented a well grounded claim; that is a claim which is plausible. If he has not presented a well grounded claim, his appeal must fail, and there is no duty to assist him further in the development of his claim as any such additional development would be futile. Murphy v. Derwinski, 1 Vet. App. 78 (1990). To sustain a well grounded claim, the claimant must provide evidence demonstrating that the claim is plausible; mere allegation is insufficient. Tirpak v. Derwinski, 2 Vet. App. 609 (1992). The determination of whether a claim is well grounded is legal in nature. King v. Brown, 5 Vet. App. 19 (1993). A well grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of 38 U.S.C.A. § 5107(a). Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). To be well grounded, a claim must be accompanied by supportive evidence, and such evidence must justify a belief by a fair and impartial individual that the claim is plausible. Where the determinative issue involves a question of either medical causation or diagnosis, medical evidence is required to fulfill the well grounded claim requirement of 38 U.S.C.A. § 5107(a). Lathan v. Brown, 7 Vet. App. 359 (1995). Establishing service connection generally requires medical evidence of a current disability, see Rabideau v. Derwinski, 2 Vet. App. 141 (1992); medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well- grounded claim set forth in Caluza, supra), petition for cert. filed, No. 97-7373 (Jan. 5, 1998); Heuer v. Brown, 7 Vet. App. 379 (1995); Grottveit v. Brown, 5 Vet. App. 91 (1993). Alternatively, under 38 C.F.R. § 3.303(b) (1999), service connection may be awarded for a "chronic" condition when: (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307 (1999)) and the veteran presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period) but is not identified until later, there is a showing of continuity of symptomatology after discharge, and medical evidence relates the symptomatology to the veteran's present condition. See Savage v. Gober, 10 Vet. App. 488, 495-98 (1998). The veteran is claiming that he currently has a left arm muscle strain that was incurred during service. The service medical records show the veteran had a laceration of the left arm which was treated with stitches. Further, the reports of the May 1997 and March 1998 VA examination are negative for any current diagnosis of a left arm muscle strain. As there is no current medical evidence to establish the presence of the left arm muscle strain claimed on appeal, there can be no valid claim. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); and Brammer v. Derwinski, 3 Vet. App. 223 (1992). The only evidence that would support the veteran's claim is found in his statements and testimony; however, lay evidence is inadequate to establish a medical diagnosis. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The veteran having failed to present evidence of a plausible claim for entitlement to service connection for a left arm muscle strain, that claim must be denied. While it can be argued that the VA has a duty to assist claimants whose claims are not well grounded, this proposition has been rejected by the United States Court of Appeals for Veterans Claims. On July 14, 1999, the Court affirmed a September 6, 1996 Board decision which denied claims for service connection for several disabilities as not well grounded. Morton v. West, 12 Vet. App. 477 (1999). In that case, the Court addressed and rejected the appellant's argument on appeal that, by virtue of various regulations, VA ADJUDICATION PROCEDURE MANUAL M21-1 provisions, and Compensation & Pension Service (C&P) policy concerning the development of claims, VA had taken upon itself a duty to assist in fully developing the facts pertinent to a claim even in the absence of a well-grounded claim. Because there is no duty to assist under 38 U.S.C. § 5107(a) absent the submission of a well- grounded claim, see Epps v. Gober, 126 F.3d 1464, 1467 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2348 (1998), the Court held that the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim until such a claim has first been established. In the order, the Court addressed and rejected the request of a judge for en banc consideration. Morton v. West, 12 Vet. App. 477 (1999) (per curiam). B. Rating In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims held that there is a distinction between an original rating and a claim for an increased rating. The Court also held that the rule from Francisco v. Brown, 7 Vet. App. 55, 58 (1994) ("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."), is not applicable to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. As this case involves a rating assigned in connection with a grant of service connection, the Board will follow the mandates of the Fenderson case in adjudicating this claim. Moreover, after reviewing the record, the Board is satisfied that all relevant facts have been properly developed. Under applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. §§ 4.1 and 4.2. Also, 38 C.F.R. § 4.10 provides that, in cases of functional impairment, evaluations must be based upon lack of usefulness of the affected part or systems, and medical examiners must furnish, in addition to the etiological, anatomical, pathological, laboratory and prognostic data required for ordinary medical classification, full description of the effects of the disability upon the person's ordinary activity. These requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based upon a single, incomplete, or inaccurate report, and to enable the 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 594. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Under applicable criteria, a 10 percent rating is warranted for scars, superficial, tender, and painful on objective demonstration. 38 C.F.R. Part 4, Diagnostic Code 7804. The veteran has received the maximum available under this rating code. The veteran may additionally be rated higher under Diagnostic Code 7805, for scars, other; which is rated on limitation of function of part affected. A higher rating may be available under the applicable criteria regarding the musculocutaneous nerve: Diagnostic Code 8517 Paralysis of: Complete; weakness but no loss of flexion of elbow and supination of forearm......30 [major extremity] Incomplete: severe........20 [major extremity] Incomplete: moderate.......10 [major extremity] Diagnostic Code 8617 Neuritis Diagnostic Code 8717 Neuralgia 38 C.F.R. § 4.124(a) (1999). The ratings above for neuralgia and neuritis are rated on the nerve affected. In addition, the following regulations must be considered. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 (1999) Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124 (1999). "Neuralgia" is pain extending along the course of one or more nerves usually without demonstrable changes in the nerve structure. Webster's Medical Desk Dictionary 471 (1986). "Neuritis" is inflammation of a nerve. Dorland's Illustrated Medical Dictionary 1127 (27th ed. 1988). The record does not support the veteran's claim for a rating in excess of 10 percent, for laceration of the left arm as there is no evidence of severe incomplete paralysis, complete paralysis, or severe neuralgia or neuritis. On the March 1998 VA examination, the veteran had only hypesthesia just distal to the scar with complete range of motion of the elbow. In summary, the preponderance of the evidence clearly establishes that the symptoms do not meet the criteria for a rating in excess of that currently assigned. ORDER As a well grounded claim has not been presented, entitlement to service connection for left arm muscle strain is denied. Entitlement to a rating in excess of 10 percent for laceration of the left arm is denied. REMAND The veteran contends that the RO erred by failing to grant the benefits sought on appeal. He has thus stated a well grounded claim for a rating in excess of that currently assigned. A claim for a rating in excess of that assigned is well grounded if the claimant asserts that a condition for which service connection has been granted has worsened. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). In reviewing the evidence in the claims folder, the undersigned notes that the VA examinations conducted in May 1997 and March 1998 are inadequate for rating purposes as the examinations did not address the requirements of DeLuca v. Brown, 8 Vet. App. 202 (1995). In that case, 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") held that in evaluating a service-connected joint, the Board erred by not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement under 38 C.F.R. § 4.45. Thus, when considering the rating to be assigned a service- connected joint, medical evidence must be obtained as to any additional range of motion loss or ankylosis due to pain on use, incoordination, weakness, fatigability, or during flare- ups. DeLuca. The veteran has indicated that his right knee symptoms and left index finger symptoms are exacerbated by use. Therefore, the veteran should be afforded an orthopedic examination to address the DeLuca requirements. Moreover, the RO must consider the principles of rating enunciated in VAOPGCPREC 23-97 (July 1, 1997) (under certain circumstances, separate ratings may be assigned for separate manifestations of a knee disability) and VAOPGCPREC 9-98 (August 14, 1998). Under the circumstances of this case, further development is necessary. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should obtain the names and addresses of all medical care providers who have treated the veteran for residuals of a right knee injury and left index finger injury in recent years. After securing the necessary releases, the RO should obtain all records that have not already been obtained and associate them with the claims file. 2. Following completion of the above action, the veteran should be afforded a VA orthopedic examination to determine the current severity of the service connected residuals of a right knee injury and service connected left index finger injury. The claims folder must be made available to the examiner for review prior to the examination. All necessary diagnostic testing should be done to determine the full extent of all disability present. All disability should be evaluated in relation to its history with emphasis on the limitation of activity and functional loss due to pain imposed by the disability at issue in light of the whole recorded history. The examiner should be asked to describe all manifestations of the right knee disability, to include whether there are any findings of subluxation, instability, locking, swelling, or loss of range of motion. Any instability should be described as mild, moderate or severe. The examiner should indicate whether there is any ankylosis of the right knee; and, if so, the position in degrees should be given. If there is limitation of motion, the ranges of motion should be given in degrees. For VA purposes, normal flexion is to 140 degrees and normal extension is to 0 degrees. The examiner should be asked to determine whether the knee exhibits weakened movement, excess fatigability, or incoordination attributable to the service connected disability; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss or ankylosis (which should be described in degrees) due to any weakened movement, excess fatigability, or incoordination. The examiner should also be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the knee is used repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or ankylosis (express in degrees) due to pain on use or during flare-ups. The examiner should indicate whether there is limitation of motion or ankylosis of the left index finger. The examiner should also note whether motion permitting flexion of the tip of the left index finger to within 2 inches of the transverse fold of the palm is possible. The examiner should be asked to determine whether each joint of the left index finger exhibits weakened movement, excess fatigability, or incoordination attributable to the service connected disability; and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss or ankylosis (favorable, unfavorable or extremely unfavorable-- also note whether equivalent to any joint of the finger being in extension or in extreme flexion) due to any weakened movement, excess fatigability, or incoordination. The examiner should also be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the left index finger is used repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or ankylosis (favorable, unfavorable or extremely unfavorable- also note whether equivalent to any joint of the left index finger being in extreme flexion or in extension) of any joint of the left index finger due to pain on use or during flare-ups. If the examiner is unable to make any determination, it should be so indicated on the record. The factors upon which any medical opinion is based should be set forth for the record. 3. After completion of the requested development, the RO should review the veteran's claims on the basis of all the evidence of record. If the action taken remains adverse to the veteran, he and his representative should be furnished a Supplemental Statement of the Case. Consideration should be given to the recent case of Fenderson v. West, 12 Vet. App. 119 (1999). Therein, the Court held that, with regard to initial ratings following the grant of service connection, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. If the veteran fails to appear for a scheduled examination, the RO should include a copy of the notification letter in the claims file as to the date the examination was scheduled and the address to which notification was sent. The veteran and his representative should then be afforded an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The appellant 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). 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. Iris S. Sherman Member, Board of Veterans' Appeals