BVA9507075 DOCKET NO. 93-12 183 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for polyarthritis. 2. Entitlement to service connection for a right arm disorder. 3. Entitlement to a disability evaluation in excess of 50 percent for residuals of left elbow laceration with partial paralysis of the left ulnar nerve and left arm scar. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Christopher B. Moran, Counsel INTRODUCTION The veteran served on active duty from January 1951 to May 1956. During the course of the development of the veteran's appeal, he appears to raise the issue of entitlement to a total disability rating based on individual unemployability in a letter submitted in December 1990. Such matter is referred to the Department of Veterans Affairs (VA) Regional Office (hereinafter RO) for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL It is contended by the veteran, in essence, that he developed a generalized or polyarthritis of multiple joints to include the right arm along with other right upper extremity disorders variously classified during active duty or secondary to service- connected residuals of paralysis of the left ulnar nerve. Specifically he maintains that, due to the severe functional limitation associated with his service-connected left upper extremity, he was forced to place greater stress than normal upon his right upper extremity thereby developing a right arm disorder as well as accelerating the onset of a general arthritic process. Also, he argues that the symptoms and manifestations associated with his service-connected residuals of paralysis of the left ulnar nerve with scar of the left arm include greater functional limitations than that reflected by the 50 percent evaluation currently assigned. 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 claim for an increased evaluation for residuals, left elbow laceration with partial paralysis, left ulnar nerve, scar, left arm; it is further the decision of the Board that the veteran's claims of service connection for polyarthritis and right arm disorder are not well grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. Service connection has been established for residuals of left elbow laceration with partial paralysis of the left ulnar nerve with scar of the left arm. 3. No medical evidence presently demonstrating a polyarthritis process in or proximate to active service or due to a service- connected disability has been submitted. 4. A right arm disorder, however diagnosed, was not present during active service and without any supporting cognizable evidence demonstrating an etiologic relationship to the right arm symptoms variously classified including distal ulnar neuropathy and carpal tunnel syndrome first noted in many years post service and following an intercurrent job-related accident. 5. The clinical evidence does not suggest nor does any physician state that any causal or etiologic relationship exists between any identifiable polyarthritis or right arm disorder and service- connected residuals of paralysis of the left ulnar nerve with scar of the left arm 6. The veteran's service-connected residuals of paralysis of the left ulnar nerve with scar of the left arm is primarily manifested by an asymptomatic scar of the left elbow with atrophy and mild contractions between the 4th and 5th fingers, inability to touch his thumb to the little finger, decreased grip strength and decreased sensation in the last two fingers and the outside of the hand and arm with decreased strength and dexterity of the left hand productive of no more than complete paralysis of the ulnar nerve, and with evidence full range of motion of the remaining fingers, wrist and shoulder with pain only on extreme. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for polyarthritis is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim for service connection for right arm disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The criteria for the assignment of a disability evaluation greater than 50 percent for residuals of left elbow laceration with partial paralysis of the left ulnar nerve with scar of the left arm have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.14, 4.20, 4.40 and Part 4, Diagnostic Codes 8516, 8515, 8512 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). Arthritis is contemplated within the provisions for presumptive service connection in accordance with 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). 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) (1994). Secondary service connection for a disability is warranted when that disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1994). I. Not Well-Grounded Claims The threshold question that must be resolved with regard to each claim is whether the veteran has presented evidence that the claim is well grounded, that is, that the claim is plausible. If he has not, his appeal fails as to that claim, and we are under no duty to assist him in any further development of that claim. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). Case law provides that, although a claim need not be conclusive to be well grounded, it must be accompanied by evidence. A claimant must submit supporting evidence that justifies a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992); Dixon v. Derwinski, 3 Vet.App. 261, 262 (1992). In order for service connection to be warranted, there must be evidence of a present disability which is attributable to a disease or injury incurred during service. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992) in which a veteran sought service connection for hypertension and where the Court found that, "because of the absence of any evidence of current hypertension...the appellant's claim is not plausible and, therefore, not well grounded." Moreover, where the determinative issue involves a question of medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well- grounded claim. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Lay assertions cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. Where the appellant's claim is predicated on the contention that his service-connected disorder caused a new disease the appellant must provide evidence of such a casual relationship to establish a well-grounded claim. See Jones (Wayne L.) v. Brown, No. 93-315 (U.S. Vet. App. Nov. 14, 1994). The Board notes that a variety of medical records have been associated with the veteran's claims folder. These records include his service medical records to include reports of entry and physical evaluation board examinations as well as a report of an initial post service VA examination in September 1956, VA hospital summary reflecting a period of hospitalization between April and May 1961, a report of a VA examination in October 1980, numerous private clinical records dating between approximately 1987 and 1991 along with a report of a VA examination dated in July 1991. In the case before us, we find that the evidence does not clinically demonstrate the presence of polyarthritis in service or currently. Moreover, a right arm disorder, however diagnosed, was not present during active duty and without any supporting cognizable evidence of record demonstrating an etiologic relationship to the right arm symptoms variously classified including distal ulnar neuropathy and carpal tunnel syndrome first noted in many years post service and following an intercurrent job-related accident. Additionally, the appellant has not submitted evidence showing a causal relationship between his claimed disorders and service-connected residuals of paralysis of the left ulnar nerve with scar of the left arm. We accordingly find that the veteran's claims for service connection for polyarthritis and right arm disorder are not well grounded, and therefore, must fail for reasons and bases noted below. II. Polyarthritis A review of the veteran's service medical records is silent for any complaints or finding including X-rays reflecting the presence of an underlying of an polyarthritis process. Rather, they essentially refer to treatment for musculoskeletal complaints associated with neuropathy in the left ulnar nerve manifested by paralysis and scar in the area of the left elbow region for which service-connection has been established or to instances of treatment for lumbosacral strain and knee abrasions and suspected Pellegrini-Stieda disease for which entitlement to service connection is not presently under consideration. Moreover, a polyarthritis process was shown on initial post service VA examination in September 1956 or subsequent VA hospital summary dated in 1961 or VA examination in October 1980. Significantly, the pertinent post service evidence of record primarily consisting of private medical reports and diagnostic workups through R. Lee Pippin, M.D. first referring to multiple joint complaints between approximately 1987 and 1991, and variously diagnosed as polyarthritis, rheumatoid arthritis, and generalized multiple joint arthritic process, lacks clinical confirmation of any presently demonstrated underlying identifiable polyarthritis process, however diagnosed. No evidence of polyarthritis was found a VA examination in July 1992. Only incidental findings of traumatic arthritis associated with an old fracture of the distal end of the proximal phalanx of the left small finger by X-ray were shown at that time. Thus, the medical evidence actually shows that an identifiable polyarthritis process is not present. While the veteran maintains that he acquired such disorder during active duty or secondary to a service-connected disorder, he is not medically qualified to render an opinion as to diagnosis and etiology. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Lay assertions of medical causation cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a); if no cognizable evidence is submitted to support a claim, the claim cannot be well-grounded. Grottveit, 5 Vet.App. 91, 93. Furthermore, if there is no showing of the current existence of the disorder, the claim is not well-grounded. Rabideau, 2 Vet.App. 141, 143; 38 U.S.C.A. 5107. Since the evidence in the file does not show that the veteran currently has an identifiable underlying polyarthritis process, for which he seeks compensation, his claim is not well grounded. If a claim is not well-grounded, the Board does not have jurisdiction to adjudicate the claim. Boeck v. Brown, 6 Vet.App. 14, 17 (1993). As such the appeal must be dismissed. III. Right Arm Disorder The veteran primarily maintains that he developed a right arm disorder due to extra strain placed on that arm over the years due to severe functional limitations associated with his service- connected left upper extremity. At the outset, we note that the veteran's service medical records in their entirety are silent for any complaint or finding associated with the veteran's right upper extremity (major) during active duty. All reports of physical examinations, including an examination in April 1946 for purposes of final separation from active duty, were within normal limits. At the time of final separation, strength and range of motion testing of the right upper extremity was not shown to be other than normal. The post service evidence of record, including a report of an initial VA examination dated in September 1956, VA hospital summary dated in 1961 and report of VA examination in October 1980 is silent for any mention of a right arm disorder or pertinent symptoms until private medical records submitted through R. Lee Pippin, M.D., dating between approximately 1987 and 1991 first reflect treatment for right upper extremity symptoms beginning from September 1989, and at a time proximate with an intercurrent wrist sprain due to an injury at work when a drill "got loose." Thereafter, the veteran's right upper extremity symptoms were variously diagnosed including carpal tunnel syndrome and right distal ulnar neuropathy. Also, as it stands, the medical evidence of record does not suggest nor does any physician state that an etiologic relationship exists between the recent onset of any post service right arm disorder and the veteran's service-connected residuals of paralysis of the left ulnar nerve with scar of the left arm. As noted above, the veteran is not qualified to make such a causal relationship. When the determinative issue involves a question of medical diagnosis or medial causation, competent medical evidence to the effect that the claim is plausible or possible is required to establish a well-grounded claim. Aside from the veteran's assertion of medical causation, there is no cognizable evidence submitted to support his claim that he has a right arm disorder which is etiologically linked to service or secondary to a service-connected disability. Therefore, his claim is not well grounded. If a claim is not well grounded, the Board does not have jurisdiction to adjudicate the claim. As such, the appeal must be dismissed. IV. Well-Grounded Claim We note that the veteran's claim for entitlement to an increased evaluation for residuals of paralysis of the left ulnar nerve with scar of the left arm is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. He has not asserted that any records of probative value that may be obtained and which are not already associated with his claims folder are available. We, accordingly, find that all relevant facts have been properly developed, and that the duty to assist him, mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. When all the evidence is assembled, the VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). V. Increased Rating Disability ratings are based, as far as practicable, upon the average impairment of earning capacity resulting from the disability. 38 U.S.C.A. § 1155 (West 1991). The average impairment is set forth in the VA Schedule for Rating Disabilities, as codified in 38 C.F.R. Part 4 (1994), which includes diagnostic codes which represent particular disabilities. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1 (1994). Moreover, we note that, when an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (1994). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or of all necessary bones, joints, and muscles, or associated structures or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40 (1994). The provisions of 38 C.F.R. § 4.14 preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with the symptomatology of the other conditions. Esteban v. Brown, 6 Vet.App. 259 (1994). Impairment associated with a veteran's service-connected disability may be rated separately unless it constitutes the same disability or the same manifestation. Esteban, 6 Vet.App. at 261. The critical element is that none of the symptomatology is duplicative or overlapping; the manifestations of the disabilities must be separate and distinct. Esteban, 6 Vet.App. at 261, 262. The provisions of 38 U.S.C.A. Part 4, Diagnostic Code 8516 provides a maximum 50 percent evaluation for complete paralysis of the ulnar nerve of the upper minor extremity where there is "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers, cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. The provisions of 38 C.F.R. Part 4, Diagnostic Code 8515 provide a next higher 60 percent evaluation where there is complete paralysis of the median nerve of the upper minor extremity manifested by the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of the thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. In accordance with the provisions of 38 C.F.R. Part 4, Diagnostic Code 8512, where there is paralysis of the lower radicular group of the minor upper extremity, the next higher evaluation of 60 percent is warranted where there is complete paralysis productive of all intrinsic muscles of the hand and some or all of flexors of wrists and fingers, paralyzed (substantial loss of use of hand). An historical review of the record shows that an original RO rating determination in October 1956 established service connection for a lacerated left elbow wound with incomplete paralysis of the left ulnar nerve with scar of the left arm, asymptomatic, evaluated at 20 percent under 38 C.F.R. Part 4, Diagnostic Code 8516 based upon incurrence in 1954 in active service with findings noted on an initial VA examination in September 1956. At that time, it was noted that the veteran had received a laceration of the left arm while in the service with division of the ulnar nerve on the left. He complained of weakness in the left hand and forearm. He stated that his left hand froze and was sensitive to cold. A well-healed, asymptomatic scar was present over the extensor surface of the left elbow. It measured approximately 6 inches in length. Range of motion of the elbow was full. On a neurologic examination, there was some paralysis of abduction of the thumb and there was atrophy of the interossei and of the hypothenar eminence. It was noted that, apparently, there was practically complete loss of sensation in the little finger and the adjacent half of the ring finger. He was unable to extend and little and ring fingers but could make a fist and he had inability to spread or close the little finger when the hand was flat. There was no ankylosis in the joints of the finger; however, he had some blunting of sensation to pinprick and light touch from the wrist to near the elbow over the area supplied by ulnar nerve which was approximately 2 inches in width. It was concluded that there was an incomplete paralysis of the ulnar nerve present which was probably stationary and moderately disabling. Objectively, it was manifested by some atrophy of the left forearm. Based upon findings of fairly complete left ulnar nerve palsy significantly interfering with his work as reported on a VA examination in October 1980, an RO determination in December 1980 awarded an increased 50 percent evaluation for paralysis of the left ulnar nerve with scar under 38 C.F.R. Part 4, Diagnostic Code 8516. Examination findings at that time revealed complaints of impairment of mobility and flexibility of the hand and arm as well as fingers. On a neurologic evaluation, a well-healed scar over the left elbow was noted. The nerve had been transplanted and could be palpated medial to the olecranon process. A small neuroma could be palpated along its course, and this had a Tinel's sign with tapping. There was fairly complete numbness over the ulnar area in the hand and marked wasting of the abductor digiti quinti and the first dorsal interosseous muscle. Evidence received in support of the veteran's current reopened claim primarily consisted of numerous private medical records through R. Lee Pippin, M.D., dating between approximately July 1987 and November 1991 along with a report of a VA general medical examination, neuropsychiatric examination with pertinent neurologic findings and examination for housebound and aid and attendance benefits dated in July 1991. The bulk of the private medical evidence primarily focused upon symptoms and disorders other than the veteran's service-connected left upper extremity laceration residuals. On an evaluation in April 1991, the left hand revealed gross atrophy in the left hand and thenar area with flexion deformities of the 4th and 5th fingers on the left. Decreased grip strength was greater on the left than right. "Pretty good" range of motion of the left elbow and shoulder was noted along with mild decrease in the left shoulder on extreme range of motion. On a report of a VA examination in July 1991, full range of motion of the left shoulder with pain on extreme was noted. Full range of motion was also noted in the fingers and wrist on the left side. On an examination for purposes of housebound and aid and attendance benefits, slight decrease in grip of the left hand was noted along with slight decrease in fine movements. He was able to feed himself, button his clothing, shave and attend to the needs of nature. He did not use any special appliance. Pertinent diagnosis was paralysis of the left upper extremity. On a special neuropsychiaytric evaluation, a scar on the inside of the left elbow was noted. There was atrophy of the musculature on the outside of the left hand and between the fifth and fourth fingers. The left fifth and fourth fingers had mild contractions. However, they could be straightened out by the examiner but not by the veteran. He was unable to touch his thumb to the little finger. There was decreased grip strength on the left. There was also some atrophy on the inside, medial side of the forearm. On examination, there was also decreased sensation in the last two fingers and the outside of the left hand and arm. There was decreased strength in the left hand compared to the right. There was also decreased dexterity on the left. Impression was paralysis, left ulnar nerve. A comprehensive review of the evidence demonstrates that the manifestations and symptoms associated with the veteran's residuals of paralysis of the left ulnar nerve with scar of the left arm are contemplated within the maximum 50 percent evaluation assigned under Diagnostic Code 8516 for complete the minor left upper extremity ulnar nerve. Significantly, the objective evidence of record fails to demonstrate manifestations required for a next higher evaluation under the alternative diagnostic code cited above as the current objective findings fall wide of the mark of those contemplated for higher evaluations. Overall, the preponderance of the evidence is negative and does not support the veteran's claim for an increased evaluation for his service-connected left upper extremity disorder. VI. Other Considerations Consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the appellant with regard to his claim for an increased evaluation for residuals of paralysis of the left ulnar nerve with scar of the left arm. We find that this disorder does not more nearly approximate the criteria required for the next higher rating under the above-noted code provisions; therefore, the lower rating is to be assigned. 38 C.F.R. § 4.7( 1994). We also find that the evidence does not show that the service- connected left elbow laceration residuals disorder present such an unusual or exceptional disability picture as to render the application of the regular schedular standards. We find that the evidence discussed herein does not show that the service- connected disorder at issue presents such an unusual or exceptional picture as to render impractical the application of the regular schedular standards. Therefore, the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b) (1994) is not warranted. ORDER The veteran's claim for entitlement to service connection for polyarthritis is dismissed. The veteran's claim for entitlement to service connection for a right arm disorder is dismissed. An increased evaluation for residuals of left elbow laceration with partial paralysis of the left ulnar nerve with scar of the left arm is denied. SAMUEL W. WARNER 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.