BVA9505726 DOCKET NO. 93-08 151 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to service connection for migraine headaches. 3. Entitlement to service connection for shortening of the left leg. 4. Entitlement to an increased evaluation for the residuals of a fracture of the left wrist, rated 10 percent disabling. 5. Entitlement to an increased evaluation for the residuals of a fracture of the left ankle, rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans INTRODUCTION The veteran had active military service from April 1966 to April 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) of Denver, Colorado. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that service connection should be granted for his back disorder, his migraine headaches, and the shortening of his left leg. It is claimed, in part, that as a result of his service connected disorders of the left extremities that he has back impairment. It is also contended that his service-connected left wrist and left ankle disorders are more disabling than reflected by the currently assigned ratings. It is also asserted that special examinations are needed prior to entry of a Board decision on his case. Attention has also been directed to applicable regulatory provisions. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claims for service connection for a low back disorder and for migraine headaches, and against the claims for increased ratings for residuals of fractures of the left wrist and left ankle. It is the further decision of the Board that the claim for service connection for shortening of the left leg is not well grounded, and that the appeal as to that issue should be dismissed. FINDINGS OF FACT 1. There is no evidence that the veteran has shortening of the left leg. 2. Service connection has been established for residuals of fractures of both ankles, the left wrist, the left third rib, scarring on the head and neck, and thrombophlebitis with varicose veins of the left leg. 3. A low back disorder was not shown during service and is not etiologically or causally related to a service-connected disease or injury; current low back pathology is not related to any in- service event or occurrence. 4. Migraine headaches were not present in service and are not related to any in-service event or occurrence. 5. The residuals of a fracture of the left wrist are manifested by slight limitation of motion and arthritic changes with good hand grip, no malunion or nonunion, and without ankylosis being shown. There is full supination and pronation 6. The residuals of a fracture of the left ankle are manifested by slight limitation of motion and weakness, without muscle atrophy, impairment of gait, without ankylosis, and without moderate or marked ankle impairment. CONCLUSIONS OF LAW 1. The claim for service connection for shortening of the left leg is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. A low back disorder was not incurred in or aggravated by service and is not proximately due to or the result of a service- connected disease or injury. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1994). 3. Migraine headaches were not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). 4. The criteria for an evaluation in excess of 10 percent for the residuals of a fracture of the left wrist have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.40, Part 4, Codes 5010-5003, 5211, 5212, 5213, 5214, 5215 (1994). 5. The criteria for an evaluation in excess of 10 percent for the residuals of a fracture of the left ankle have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.40, Part 4, Codes 5262, 5270, 5271, 5272 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Factual Background The veteran had active military service from April 1966 to April 1968. On examination for entry into service he gave a history of occasional headaches. They were relieved with aspirin. He also gave a history of a left wrist fracture in 1961. This was not considered disabling. Physical examination for induction was negative in all pertinent parts. Other medical records reveal that the veteran was a passenger in an automobile that was involved in an accident in September 1966. He sustained, in pertinent part, a fracture of the left wrist, a fracture of the left distal fibula, and a laceration of the left deltoid ligament. He was also noted to have sustained multiple abrasions and contusions of the head. He was hospitalized at a private facility for a time, during which the left deltoid ligament was repaired and the fractures were casted. During the recovery process the veteran also had an episode of thrombophlebitis of the left thigh. X-rays taken during the hospitalization revealed that the fractures were healing well and in good alignment. Service medical records reveal that the veteran was seen in May 1967. It was noted that there was some persistent edema of the left leg, and that it was not entirely controlled by an elastic support. A permanent limited profile was recommended. On examination for separation from service, the veteran denied back pain and headaches. His history of broken bones was noted. He was reported to have decreased left wrist flexion and extension of about 5 degrees. Residual scarring of the left ankle was also noted. No shortening of the left lower extremity was noted at any time during service. The records reveal that the veteran is right handed. The veteran filed his original claim for service connection in May 1992. He reported treatment in 1989 and thereafter for his back by three health care providers. He was instructed to obtain and submit pertinent information, and/or fill out release of information forms sent to him so that the RO could assist in obtaining records. The release of information forms were not returned, but the veteran did submit some private medical records. The records submitted include chiropractic treatment rendered for the low back in 1989. The veteran gave a history of having bent over to put drops in a dogs eye, and having the onset of pain. It was noted that he had a history of recurring back pain. Private medical records on file show he was seen in December 1989 for an acute back strain. He was seen again, and the same diagnostic impression was rendered in June 1990 after moving a pool. In October 1991 he was seen for severe back pain. He reportedly was getting adjustments. The doctor gave him medication. Migraine headaches were noted in February 1992. Medication was prescribed. The record contains two lay statements. Both indicate that the veteran had missed time from work in 1989, 1990, and 1991, due to episodes of back pain. A VA examination was conducted in June 1992. The veteran complained of back and leg pain, and a lack of strength in the left wrist. The veteran reported 1 to 2 visits to a chiropractor a month for the last several years. He had also been seen by his private doctor 2 to 3 times per year for back and leg complaints. The VA examiner noted that the claims folder was available for review. The history of the in-service fractures was noted, as were the treatments that had been rendered at that time. The veteran gave a history of periodic migraines, the last about 4 years prior to this examination. On examination, residual scarring was noted on the left ankle. There was a negative Drawer's sign and no gross ankle instability was noted. The ankle had a full normal range of motion. There was no evidence of effusion, nor was there any tenderness in the range of motion. Ambulation was normal, without either extremity being favored. Lower extremity strength and muscle size was described as normal bilaterally. Examination of the left wrist revealed a restricted range of motion of 0 to 50 degrees. Palmar flexion was 0 to 60 degrees, dorsiflexion was o to 25 degrees ulnar and 0 to 15 degrees radial deviation with normal pronation and supination. Grip strength was normal. Examination of the back revealed some limitation of motion and some spasm. X-rays of the back revealed spondylolysis and spina bifida occulta. X-rays of the left wrist showed arthritic changes and ossicles near the ulnar styloid thought indicative of old trauma. X-rays of the left ankle showed ossicles that were consistent with old trauma, and some irregularity of the fibula consistent with an old healed fracture. At the conclusion of the examination, the examiner noted that there was no evidence of leg length shortening. It was also noted that there was no evidence to suggest that the veteran's back disorder was related to any lower extremity impairment. The fracture residuals with limitations as described were noted. The left ankle was described as having mild instability and minimal functional impairment. By rating decision of October 1992, the RO granted service connection, and assigned separate 10 percent ratings for: the residuals of a fracture of the left ankle; the residuals of a fracture of the left wrist; residual scarring of the right side of the neck, forehead, and scalp; and, thrombophlebitis of the left leg with varicose veins. Service connection was also granted for the residuals of a fracture of the right ankle and residuals of a fracture of the left third rib, rated noncompensably disabling. Analysis The threshold question to be answered at the outset of the analysis of any case is whether the veteran's claims are well grounded; that is, whether they are plausible, meritorious on their own, or otherwise capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). If a particular claim is not well grounded, then the appeal fails and there is no further duty to assist in developing facts pertinent to the claim as such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991). For reasons set forth in greater detail below, we conclude that the claim of service connection for shortening of the left leg is not well grounded, and that the appeal as to that issue should be dismissed. After reviewing the evidence on file, we conclude that the remaining claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the claims are not inherently implausible. Moreover, we conclude that all pertinent facts have been developed, and that as such there is no further duty to assist in developing the claims. Id. In that regard, the veteran has asserted that a special physical examination is in order prior to evaluating his claim. The Board does not agree. There are on file, private medical records that the veteran has submitted, and a VA physical examination. The examination seems comprehensive, the examiner recorded and was clearly aware of the veteran's medical history, and he had the claims folder for review. There do not appear to be inconsistencies in the medical reports on file, and there is no good cause or reason shown why additional examination is needed. The medical evidence seems sufficient in this case to allow an informed opinion to be entered. In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: The veteran prevails in either event. However, if the weight of the evidence is against the veteran's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). For service connection to be granted, it is required that the facts, as shown by the evidence, establish that a particular injury or disease resulting in chronic disability was incurred in service, or, if pre-existing service, was aggravated therein. 38 U.S.C.A. § 1110, (West 1991); 38 C.F.R. § 3.303 (1994). Service connection may also be established where there is a chronic disability which is proximately due to or the result of another service connected disability. 38 C.F.R. § 3.310 (a) (1994). 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 (West 1991); 38 C.F.R. Part 4, § 4.1 (1994). Separate diagnostic codes identify the various disabilities. Shortening of the Left Leg A veteran has, by statute, the duty to submit evidence that a claim is well grounded. The evidence must "justify a belief by a fair and impartial individual" that the claim is plausible. 38 U.S.C.A. § 5107 (a) (West 1991). Where such evidence is not submitted, the claim is not well grounded, and the initial burden placed on the veteran is not met. See Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Evidentiary assertions by the veteran must be accepted as true for the purposes of determining whether a claim is well grounded, except where the evidentiary assertion is inherently incredible or is beyond the competence of the person making the assertion. See King v. Brown, 5 Vet.App. 19 (1993). In this case, the evidentiary assertions as to the claim of service connection for shortening of the left leg is inherently incredible when viewed in the context of the total record. Review of the evidentiary record fails to reveal any clinical evidence of shortening of the left lower extremity. There is no mention of claimed shortening in the service medical records, there is no mention of the claimed shortening in the private medical records submitted, and there is no mention of treatment for any claimed shortening in the veteran's claim for benefits. At the time of the VA examination, the examiner, despite specifically looking for shortening, was unable to find any. Where a claimed disability is not shown in service and is not currently demonstrated, the claim is not well grounded and service connection is not in order. See Rabideau v. Derwinski, 2 Vet.App. 141 (1992); Fields v. Derwinski, 90-933 (U.S. Vet. App. Dec. 2, 1991). Low Back Disorder Review of the service medical records fails to reveal complaints or findings referable to any low back disorder. The veteran denied back pain at the time of his separation examination. Physical examination of the musculoskeletal system at that time was also negative for any pertinent complaints of findings. The medical evidence on file shows that the veteran was seen for low back pain in 1989. Clinical history recorded at that time did not relate the back pain to any in-service event or occurrence. There is nothing to suggest that the veteran was seen in the twenty years post-service from 1968 to 1988 for chronic low back pathology. The veteran reports no such treatment. The lay statements on file note that the veteran has had significant back problems in 1989, 1990, and 1991. While this would go to the severity of the disorder, it is not useful in determining the etiology of the disorder. The record is, therefore, devoid of any credible clinical or objective evidence that the veteran's low back disorder had its onset during service. It has been contended in part, that the veteran's low back disorder is caused by the service-connected disorders of the lower extremities. As noted, the veteran is service-connected for residuals of fractures of both ankles and for thrombophlebitis and varicose veins of both lower extremities. It has been determined that the veteran does not have gait alteration as a result of this pathology. When examined on this point, the examining physician determined there was no relationship between the service connected disorders and the back disorder. The Board is to enter its determinations based on the evidence of record. See Colvin v. Derwinski, 1 Vet.App. 171 (1991). In this case, that medical evidence shows no etiological relationship. The veteran has asserted the relationship, but neither he nor his representative have the medical expertise to establish a causal relationship. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992); Grottveit v. Brown, 5 Vet.App. 91 (1993). As such, secondary service connection is not in order. 38 C.F.R. § 3.310(a). The preponderance of the evidence is against the claim, as such, the doctrine of reasonable doubt is not for application. 38 U.S.C.A. § 5107. Migraine Headaches The service medical records are negative for any complaints, findings, or diagnoses of migraine headaches. At entry into service the veteran gave a history of occasional headaches. It was indicated that they were relieved by aspirin. There were no other complaints of headaches in service, and on clinical history at separation, the veteran specifically denied frequent or severe headaches. Post-service medical records show that the veteran was treated on one occasion in early 1992 for headaches. Medication was prescribed. There is nothing in the medical evidence from this treating physician which suggests that this headache was related to service. Moreover, at the time of the VA examination in June 1992, the veteran reported that his last migraine was 4 years ago. In summary, there is nothing in the clinical evidence on file to demonstrate that the veteran has chronic migraine headaches that are related to service or any event or occurrence therein. He gave a history of occasional headaches at entrance, was not treated for headaches during service, and has not been shown to have chronic migraines since service. His complaints are not sufficient to establish service connection for migraine headaches in the face of the preponderance of the evidence which shows no relationship to service. Left Wrist Disorder The veteran's service connected left wrist disorder is classified by the RO as the residuals of a fracture of the distal left radius and styloid process of ulna with arthritis. The 10 percent rating is assigned pursuant to 38 C.F.R. Part 4, Code 5010-5215. This is for arthritis with limitation of motion. The rating schedule provides that traumatic arthritis, substantiated by x-ray findings, will be rated as degenerative arthritis under Code 5003. That code provides for ratings based on limitation of motion of the specific joint or joints affected. Where there is arthritis and limitation of motion that is noncompensable under the applicable provisions, a 10 percent rating under Code 5003 is for assignment. 38 C.F.R. Part 4, Code 5010-5003. Limitation of motion of the wrist will be evaluated 10 percent disabling where dorsiflexion is less than 15 degrees or palmar flexion is limited in line with the forearm. 38 C.F.R. Part 4, Code 5215. Higher ratings can be assigned under Code 5214 for various degrees of ankylosis. A higher rating could also be assigned under Codes 5211 or 5212 for nonunion at the fracture site. A higher rating could be assigned under Code 5213 for significant loss of supination or pronation. In this case, service records reveal that the veteran had a left wrist fracture as a result of the motor vehicle accident in 1966. He was casted and there were no other significant complaints recorded during service or in the years thereafter. The veteran apparently did not seek post-service treatment for his wrist. When examined by the VA in June 1992, there was some limitation of wrist motion, but there was no ankylosis. The veteran was described as having a good hand grip. There is no evidence of malunion or nonunion at the fracture site. Moreover, there was reported to be normal supination and pronation on examination of the wrist. The veteran is right handed, so the fracture affected the "minor" extremity. The rating schedule does not provide a basis of an increased rating given the physical findings in this case. Consideration has also been given to granting an extraschedular increased rating under the provisions of 38 C.F.R. § 3.321. The evidence does not show, however, that the left wrist disorder has caused repeated absence from work, has required frequent hospitalization or treatment, or has otherwise been so unusual to render impractical the application of the regular schedular provisions. As such, an extraschedular rating is not warranted. Left Ankle Disorder The veteran's service connected left ankle disorder is classified by the RO as the residuals of a fracture of the left distal fibula and posterior malleolus of the left tibia with postoperative tear of the deltoid ligament. The 10 percent rating is assigned under Code 5262. This is for impairment of the tibia and fibula, malunion with slight knee or ankle disability. Impairment of the tibia and fibula will be rated 30 percent disabling where there is malunion with marked knee or ankle disability. A 20 percent rating is assigned for malunion with moderate knee or ankle disability. A 10 percent rating is assigned for malunion with slight knee or ankle disability. 38 C.F.R. Part 4, Code 5262. Limitation of motion of the ankle is 10 percent disabling where moderate and 20 percent disabling where marked. 38 C.F.R. Part 4, Code 5271. Higher ratings could be assigned under Codes 5270 or 5272 for varying degrees of ankylosis. The veteran sustained a fracture of the left ankle, and a tear of the deltoid ligament in the auto accident in 1966. He underwent ligament repair, and had healing of the fracture. The evidence suggests that there is good bony alignment and some slight weakness of the ankle. There was good motion on the most recent examination. He has not sought private treatment of the disorder. On recent examination there was no gait alteration and no atrophy in the musculature was described. Overall, functional or other limitation sufficient to warrant a higher rating has not been shown. Consideration has also been given to granting an extraschedular increased rating under the provisions of 38 C.F.R. § 3.321. The evidence does not show, however, that the left ankle disorder has caused repeated absence from work, has required frequent hospitalization or treatment, or has otherwise been so unusual to render impractical the application of the regular schedular provisions. As such, an extraschedular rating is not warranted. ORDER Service connection for a low back disorder and for migraine headaches is denied. Increased evaluations for the residuals of fractures of the left wrist and left ankle are denied. The claim for service connection for shortening of the left leg is not well grounded, the appeal as to that issue is dismissed. MICHAEL D. LYON Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.