Citation Nr: 0001292 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 98-13 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for right carpal tunnel syndrome. 2. Entitlement to an increased disability rating for residuals of fractures of the left foot, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The veteran served on active duty from May 1990 to August 1995. This appeal comes before the Board of Veterans' Appeals (Board) from an August 1997 rating decision of the New Orleans, Louisiana, Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for right carpal tunnel syndrome, and assigned a 0 percent, noncompensable disability rating for residuals of fractures of the left foot. In a November 1998 rating decision, the RO increased the rating for residuals of left foot fractures to 10 percent. The veteran has continued her appeal, and she is seeking a rating higher than 10 percent. FINDINGS OF FACT 1. VA outpatient treatment notes from 1997 and 1998 include a current diagnosis of bilateral carpal tunnel syndrome. 2. Records of private medical treatment during the veteran's service, in 1991, provide a diagnosis of probable right carpal tunnel syndrome. 3. The evidence of right carpal tunnel syndrome during and after service shows continuity of symptomatology. 4. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal for an increased rating for a left foot disability. 5. Service-connected fractures of the veteran's left second and third metatarsals are currently well healed, with residual manifestations in the left foot of pain and diminished endurance, without limitation of motion, producing moderate disability. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for right carpal tunnel syndrome is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). 2. The criteria for a disability rating in excess of 10 percent for residuals of fractures of the left foot have not been met. 38 U.S.C.A §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.59, 4.71a, Diagnostic Code 5284 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Right Carpal Tunnel Syndrome The veteran contends that carpal tunnel syndrome in her right hand and wrist began during service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1999). In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 524 U.S. 940 (1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that, under 38 U.S.C. § 5107(a), the Department of Veterans Affairs (VA) has a duty to assist only those claimants who have established well grounded (i.e., plausible) claims. More recently, the United States Court of Appeals for Veterans Claims (Court or CAVC) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). Once a claimant has submitted evidence sufficient to justify a belief by a fair and impartial individual that a claim is well-grounded, the claimant's initial burden has been met, and VA is obligated under 38 U.S.C. § 5107(a) to assist the claimant in developing the facts pertinent to the claim. Accordingly, the threshold question that must be resolved in this appeal is whether the appellant has presented evidence that the claim is well grounded; that is, that the claim is plausible. In order for a claim for service connection to be well grounded, there must be (1) a medical diagnosis of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in- service injury or disease and the current disability. Epps, 126 F.3d at 1468; Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). Where the determinative issue involves medical causation or etiology, or a medical diagnosis, competent medical evidence to the effect that the claim is "plausible" or "possible" is required. Epps, 126 F.3d at 1468. Further, in determining whether a claim is well- grounded, the supporting evidence is presumed to be true and is not subject to weighing. King v. Brown, 5 Vet. App. 19, 21 (1993). In regard to establishing a well-grounded claim, the second and third Epps and Caluza elements (incurrence and nexus evidence) can also be satisfied under 38 C.F.R. § 3.303(b) (1999) by (1) evidence that a condition was "noted" during service or during an applicable presumption period; (2) evidence showing postservice continuity of symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, 10 Vet. App. at 496. Moreover, a condition "noted during service" does not require any type of special or written documentation, such as being recorded in an examination report, either contemporaneous to service or otherwise, for purposes of showing that the condition was observed during service or during the presumption period. Id. at 496-97. However, medical evidence is required to demonstrate a relationship between the present disability and the demonstrated continuity of symptomatology unless such a relationship is one as to which a lay person's observation is competent. Id. at 497. In the case of a disease only, service connection also may be established under section 3.303(b) by (1) evidence of the existence of a chronic disease in service or of a disease, eligible for presumptive service connection pursuant to statute or regulation, during the applicable presumption period; and (2) present disability from it. Savage, 10 Vet. App. at 495. Either evidence contemporaneous with service or the presumption period or evidence that is post service or post presumption period may suffice. Id. In August 1991, while the veteran was in service, she was examined by James C. Butler, M.D., an orthopedic surgeon from Tulane University Medical Center. She reported pain and numbness in her right hand, with tingling in her fingers. Dr. Butler wrote that, in his opinion, the findings on physical examination were consistent with a probable right carpal tunnel syndrome. Dr. Butler stated that further diagnostic studies, specifically, electromyogram with nerve conduction studies of the upper extremities, were essential to confirm or exclude the diagnosis of carpal tunnel syndrome. Dr. Butler's report provides evidence that the veteran had right carpal tunnel syndrome during service. The claims file contains a medical diagnosis that the veteran currently has carpal tunnel syndrome of the right hand and wrist, as VA outpatient treatment notes from 1997 and 1998 list a diagnosis of bilateral carpal tunnel syndrome. Those records also reflect the veteran's reports that her symptoms, during service, of pain and numbness in her right arm, wrist, and hand, continued after service. The Board finds that the evidence of probable right carpal tunnel syndrome during service, with symptoms continuing after service, is sufficient to form a well grounded claim for service connection for right carpal tunnel syndrome. Residuals of Left Foot Fractures The veteran contends that a rating in excess of 10 percent is warranted for residuals of left foot fractures. In 1992, while the veteran was in service, she fell down some stairs and sustained injury of her left foot, with comminuted fractures of the second and third metatarsals. The Court has established that when a claimant was awarded service connection for a disability, and the claimant subsequently appealed the RO's initial assignment of the rating for those disabilities, the claim is well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218 (1995). The veteran appealed the rating initially assigned for the residuals of the fractures in her left foot. The rating schedule provides for higher ratings for that disorder. The Board finds that her claim for an increased rating is a well grounded claim. In addition, the Board is satisfied that the facts relevant to that claim have been properly developed, such that VA has satisfied its statutory obligation to assist the veteran in the development of that claim. Disability ratings are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1999). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1999). Nevertheless, the present level of disability is of primary concern, and the past medical reports do not have precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). VA regulations provide, and the Court has emphasized, that evaluation of a musculoskeletal disability must include consideration of the veteran's ability to engage in ordinary activities, including employment, and of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (1999); DeLuca v. Brown, 8 Vet. App. 202 (1995). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (1999). When the veteran sustained the injury to her left foot, in April 1992, she received treatment from a private orthopedist, Ralph J. Gessner, M.D. In June 1992, Dr. Gessner wrote that the veteran's foot was markedly swollen at the time of the injury. Dr. Gessner reported that the foot was placed in a splint, and later in a cast, after the swelling subsided sufficiently. X-rays taken in June 1992 showed good healing of the fracture sites, and weightbearing as tolerated was begun. A military physical profile form dated in April 1993 indicated that, due to residuals of left foot fractures, the veteran was to be limited to running at her own pace and distance. VA outpatient treatment notes from February 1996 indicated that the veteran reported that she had tripped and reinjured her left foot. She reported pain and swelling in the foot. X-rays of the left foot did not show any new fractures. The veteran was able to walk normally. The examiner's impression was a probable sprain of the left foot. In July 1997, the veteran reported pain and swelling in her left foot. In October 1998, the veteran reported pain in her left foot that was aggravated by weightbearing. In May and June 1998, the veteran wrote that her left foot problem was getting worse. She stated that she had continuous pain in the foot, for which she took pain medication. On VA medical examination in August 1998, she reported that she had pain, stiffness, and occasional swelling in her left foot. She indicated that the foot pain occurred daily, and was worse in cold and rainy weather. She reported that she had twisted the foot while stepping off of a curb two weeks earlier, and that she had increased swelling. She stated that, during flare-ups of pain in the foot, she needed to be in a nonweightbearing position, with her foot elevated. The examiner noted that the veteran had a slightly antalgic gait, favoring her left foot. The examiner noted a slight bony prominence over the second and third metatarsals, and swelling of the left ankle. The foot had a full range of motion. X-rays revealed intact bones and joints in the left foot, with demineralization of the bones. The rating schedule does not provide a specific diagnostic code for evaluating residuals of fractures of the metatarsals, unless there is nonunion or malunion. See 38 C.F.R. § 4.71a, Diagnostic Code 5283 (1999). X-rays of the veteran's left foot reveal that the fractures are well healed. Thus, the RO has been correct in its use of Diagnostic Code 5284, for other foot injuries, in evaluating the veteran's left foot disability. Under that diagnostic code, foot injuries are rated at 10 percent if moderate, 20 percent if moderately severe, 30 percent if severe, and 40 percent with actual loss of use of the foot. 38 C.F.R. § 4.71a, Diagnostic Code 5284 (1999). The medical records and the veteran's statements indicate the veteran has pain in the foot and a slightly antalgic gait. The range of motion of the foot is not limited. There is diminished endurance of the foot, in that pain is increased with use, and she must stay off of her foot to relieve flare- ups of pain. The Board finds that the overall disability picture is one of moderate disability, as contemplated by a 10 percent rating under the rating schedule. The limitation of function of the left foot does not rise to the level of moderately severe, as would be required for a 20 percent rating. In reaching this determination, the Board has considered whether staged ratings should be assigned. The Board concludes that the disability has not significantly changed, and a uniform evaluation is appropriate in this case. Review of the record reveals that the RO, in a November 1998 Supplemental Statement of the Case, expressed that the circumstances in the veteran's case did not warrant referral of the case to the Chief Benefits Director or the Director of the Compensation and Pension Service for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). That regulation provides that, to accord justice in an exceptional case where the schedular standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director, or the Director of the Compensation and Pension Service, for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The governing criteria for such an award is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1999). The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has reviewed the veteran's file in light of 38 C.F.R. § 3.321(b)(1) and the Court's related mandates; and the Board finds no basis for further action on this question. VAOPGCPREC 6-96 (1996). The Board concludes that the 10 percent rating that is currently assigned is the appropriate rating for the veteran's left foot disability. Thus, the claim for an increased rating is denied. ORDER The claim of entitlement to service connection for right carpal tunnel syndrome is well grounded. To this extent only, the appeal of that claim is granted. Entitlement to a disability rating in excess of 10 percent for residuals of fractures of the left foot is denied. REMAND Because the claim of entitlement to service connection for right carpal tunnel syndrome is well grounded, VA has a duty to assist the veteran in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.159 (1999); Murphy v. Derwinski, 1 Vet. App. 78 (1990). When Dr. Butler examined the veteran during service, his diagnosis was probable right carpal tunnel syndrome, and he indicated that testing should be performed to confirm or exclude the diagnosis. There is no indication in the claims file that such testing was ever performed. Therefore, the Board will remand the claim for an examination, with the testing that Dr. Butler recommended, to obtain a clear diagnosis with respect to the veteran's right hand and wrist, and to obtain a medical opinion as to whether the current disorder is a continuation of the disorder noted during service. Accordingly, this case is REMANDED for the following: 1. The RO should schedule the veteran for an examination and testing of his upper extremities, to clarify the diagnosis and likely etiology of current disorders. The examiner should be provided with the veteran's claims file and a copy of this remand for review prior to the examination. The veteran should undergo an electromyogram with nerve conduction studies of the upper extremities. The examining physician should provide a diagnosis of any disorder of the veteran's upper extremities; in particular, indicating whether there is carpal tunnel syndrome of the right upper extremity. The examiner should provide an opinion, based on the symptoms that the veteran reported during service, and the new examination and test results, as to whether it is at least as likely as not that any current disorder began during the veteran's service. 2. The RO should inform the veteran that she may submit additional evidence and argument on the matter the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). After the completion of the foregoing development, the RO should review the case. If the decision on any issue remains adverse to the veteran, she and her representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate consideration, if otherwise in order. 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. JEFF MARTIN Member, Board of Veterans' Appeals