Citation Nr: 0000314 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-05 445A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for residuals of dorsal lumbar sympathectomy on a direct incurrence basis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jeffrey A. Pisaro, Counsel INTRODUCTION The veteran had active service from April 1943 to September 1945. This appeal arises from a July 1995 rating decision of the Roanoke, Virginia Regional Office (RO), which denied entitlement to service connection for residuals of dorsal lumbar sympathectomy. A notice of disagreement was received in September 1995; however, the statement of the case that was issued in October 1995 failed to include consideration of this issue. This fact was noted in the introduction section of a Board decision dated in February 1998. Thereafter, a statement of the case was issued in April 1998 relative to the issue of entitlement to service connection for dorsal lumbar sympathectomy on a direct incurrence basis and a timely substantive appeal was received in April 1998. Although the veteran requested a hearing before the board in Washington on the substantive appeal, he withdrew this request in writing in a May 1999 submission. The aforementioned February 1998 Board decision granted service connection for frostbite residuals of the hands, feet and ears. In April 1998, the veteran filed a motion in which he contended that there was clear and unmistakable error (CUE) in the February 1998 Board decision. The veteran maintained, in essence, that an effective date should have been assigned from the date of his original service connection claim in 1947. By letter from the Board in August 1998, the veteran was notified that his April 1998 motion was being construed as a motion to reconsider the February 1998 Board decision. The motion for reconsideration was denied. It was further noted that the February 1998 Board decision was an allowance and that the effective date of the award of benefits had been determined by the RO. If the veteran disagreed with the effective date assigned, he was informed that he could file a notice of disagreement with the RO. Accordingly, the issue of whether an effective date prior to March 1995 for the grant of service connection for residuals of frostbite of the hands, feet and ears is warranted is referred to the RO for appropriate consideration. The Board further notes that the issue of entitlement to service connection for dorsal lumbar sympathectomy as being proximately due to or the result of a service connected disability is the subject of the remand section of this decision. FINDINGS OF FACT 1. The veteran has not presented competent evidence to demonstrate that residuals of dorsal lumbar sympathectomies, that were performed almost two years after service, are related to service. 2. The veteran's claim of entitlement to service connection for residuals of dorsal lumbar sympathectomy on a direct incurrence basis is not plausible. CONCLUSION OF LAW The claim of entitlement to service connection for residuals of dorsal lumbar sympathectomy on a direct incurrence basis is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual background The service medical records to include the September 1945 separation physical examination do not show that a dorsal lumbar sympathectomy was performed during service. In a January 1947 claim, the veteran indicated that he had suffered frostbite of the hands, feet and ears during service. A March 1947 statement indicates that the veteran had received VA outpatient treatment for residuals of frostbite of the hands and feet on multiple occasions in January and February 1947. A VA physician's statement in March 1947 indicates that the veteran's hands would become swollen, painful and cyanotic on exposure to a moderate degree of cold. Itching was experienced when the hands and feet were heated or became warm. The diagnoses were moderate residuals of frozen fingers and mild residuals of frozen feet and ears. Recommendations included paravertebral sympathetic block every other day if other treatment did not prove to be satisfactory. A May to July 1947 VA hospital report indicates that the veteran had been experiencing aching pains of the distal phalanges of all fingers. During exposure to cold in service, the veteran's hands would become painful and turn blue at irregular intervals. This condition had gradually grown worse. Currently, the hands would become swollen, painful, and cyanotic with small areas of necrosis of the skin on exposure to a moderate degree of cold. The veteran had not shown any improvement since March with conservative treatment. He was hospitalized in May 1947 and paravertebral sympathetic thoracic blocks were recommended. This procedure was performed bilaterally without any change in the veteran's upper extremities. Paravertebral sympathetic dorsal blocks every other day were recommended. The veteran was transferred to another hospital for consideration of this treatment. A July to September 1947 VA hospital summary shows that on admittance the veteran's hands were moist and the fingers were cool. The skin on the dorsum of the fingers proximal to the nail was tight, fibrous and adherent to the nail. The nail beds were purplish red and the pulp of the fingers was doughy. The toes showed similar changes to a lesser extent. A right cervical sympathetic block was performed causing an increase in skin temperature of the right hand. A left dorsal sympathectomy was performed. Post operative x-rays revealed that the 4th rib had been removed instead of the 3rd. The veteran showed definite evidence of sympathetic denervation. A right dorsal sympathectomy was then performed. A great deal of difficulty was encountered in locating the sympathetic change, but postoperatively his hand was as warm and dry as the left hand. Approximately 2 weeks later, the veteran had perspiration of the right hand. Subjectively, there was no difference in the two extremities. He definitely had a sympathetic denervation on the right side. The final diagnoses included residuals of frostbitten hands and toes bilaterally, treated and improved. VA chest x-rays in December 1950 revealed residual evidence of some loss of bony substance and bony regeneration at the posterior portion of the left 4th rib and the posterior portions of the right 3rd, 1st, 2nd, and possibly 4th. Several metal clips were seen in this region. A February 1958 VA hospital report noted that the veteran had some hypersensitivity to the cold in both hands. On examination, the right hand was cool and wet and the left hand was warm and dry. There were some trophic changes in the distal phalanges of all fingers of both hands. A June to July 1970 VA hospital report indicates that the veteran only had sweat on the right half of the body. The nailbeds appeared to be cyanotic. An October 1997 statement from Robert Hunter, M.D., indicates that he had been the veteran's primary care physician since March 1993. A medical history of frostbite of the ears, fingers and toes was noted. It was opined that the residual complaints of ear lobe, finger and toe pain during cold weather were related to his service connected injury. It did not appear to the examiner that the veteran had been misdiagnosed. The residual results of the operations performed in 1947 were excessive sweating of the right half of the body and the absence of sweating on the left half of the body. II. Analysis. 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. § 1110 (West 1991); 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). The regulations further provide that with 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. 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, 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. 38 C.F.R. § 3.303(b). 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 a well-grounded claim of 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). With regard to the claim of service connection for residuals of dorsal lumbar sympathectomy, there is no evidence to show that this procedure was performed during service. Moreover, the veteran has not contended that this procedure was performed during service. Dorsal lumbar sympathectomies were performed during the summer of 1947, almost 2 years following the veteran's separation from service. The only evidence that would support the instant claim is found in the veteran's statements; however, lay evidence is inadequate to establish a medical nexus. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, the veteran has not met the initial burden under 38 U.S.C.A. § 5107(a) of presenting a well grounded claim of service connection for residuals of dorsal lumbar sympathectomy on a direct incurrence basis. ORDER As a well grounded claim has not been presented, entitlement to service connection for the residuals of dorsal lumbar sympathectomy on a direct incurrence basis is denied. REMAND As noted in the introduction section of this decision, the veteran has alternatively contended that service connection is warranted for residuals of dorsal lumbar sympathectomy as being proximately due to or the result of a service connected disability. The RO has not adjudicated this claim. In view of the foregoing, the case is REMANDED to the RO for the following development: The RO should adjudicate the veteran's claim of entitlement to service connection for residuals of dorsal lumbar sympathectomy as being proximately due to or the result of a service connected disability. The veteran should be informed that he has the right to submit evidence and argument relative to this issue. If the action taken remains adverse to the veteran in any way, he and his representative should be furnished a statement of the case. They should then be afforded a reasonable opportunity to respond. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is informed, but he 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). The purpose of this REMAND is to ensure due process of law. No inference should be drawn regarding the final disposition of the claim as a result of this action. 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