Citation Nr: 0003782 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-02 821 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a left hip disorder. 2. Entitlement to service connection for a left knee disorder. 3. Entitlement to service connection for diabetes mellitus. 4. Entitlement to a higher (compensable) initial rating for nerve damage of the right little toe. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from June 1968 to July 1971. He also had subsequent active duty for training and inactive duty training with the Army Reserve, including periods from October 23, 1989, to November 3, 1989; July 25, 1993, to July 28, 1993; and from August 2, 1993, to August 5, 1993. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of May 1997 by the Department of Veterans Affairs (VA) Indianapolis, Indiana, Regional Office (RO). FINDINGS OF FACT 1. The veteran has not presented any competent medical evidence linking a current left hip disorder to his periods of service. 2. The veteran has not presented any competent medical evidence linking a left knee disorder to his periods of service. 3. The veteran has not presented any competent medical evidence linking diabetes mellitus to his periods of service. 4. The nerve damage of the right little toe has resulted in mild incomplete paralysis. CONCLUSIONS OF LAW 1. The claim for service connection for a left hip disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim for service connection for a left knee disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim for service connection for diabetes mellitus is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The criteria for a 10 percent initial rating for nerve damage of the right little toe are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.124a, 4.40, 4.45, 4.56, Diagnostic Codes 8524, 8724 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In reviewing any claim for VA benefits the initial question is whether the claim is well grounded. The veteran has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). 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 § [5107]." See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1991). If not, the claim must be denied and there is no further duty to assist the veteran with the development of evidence pertaining to that claim. See 38 U.S.C.A. § 5107(a) (West 1991). I. Entitlement To Service Connection For A Left Hip Disorder. In general, service connection may be granted for disability due to disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 1991). If a chronic disorder such as arthritis is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Service connection may be granted for disability due to disease or injury incurred in or aggravated by active duty for training, or for injury incurred during inactive duty training. See 38 U.S.C.A. §§ 101(24), 1110, 1131 (West 1991). Service connection may also be granted for disability shown to be proximately due to or the result of a service-connected disorder. See 38 C.F.R. § 3.310(a) (1999). This regulation includes service connection for a disorder which is caused by a service-connected disorder, or for the degree of additional disability resulting from aggravation of a nonservice- connected disorder by a service-connected disorder. See Allen v. Brown, 7 Vet. App. 439 (1995). The veteran has previously established service connection for residuals of a left shoulder injury, rated as 10 percent disabling; and residuals of nerve damage of the right little toe, rated as noncompensably disabling. In order for a claim for service connection to be well grounded, there must be competent evidence of a current disability, of incurrence or aggravation of a disease or injury in service, and a nexus between the in-service injury or disease and the current disability. Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Competent medical evidence is also required to satisfy the medical etiology or medical diagnosis issues in secondary service connection claims. See Libertine v. Brown, 9 Vet. App. 521, 522 (1996). The nexus to service may also be satisfied by the presumption noted above. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). Alternatively, a claim may be well grounded by showing a link to service based on the application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). The veteran's available service medical records do not contain any references to a left hip disorder. On the contrary, medical histories and reports of medical examinations dated in February 1975, July 1979, August 1983, May 1987, March 1992, consistently show that the veteran denied having a history of arthritis, and clinical evaluations of the lower extremities and musculoskeletal features were normal. The report of an examination of the veteran's joints conducted by the VA in March 1997 shows that the veteran reported a complaint of having left hip pain which he said started in service. He said that it was an achy type of pain that was there if he stayed in one position too long. On examination, the range of motion was somewhat decreased in the left hip as compared to the right. Muscle strength was slightly weaker on the left. The examiner concluded that the veteran probably had early signs of left hip degenerative joint disease which occurred normally in the regular population. The fact that the veteran's own account of having a left hip disorder since service was recorded in the examination report is not sufficient to support the claim. In LeShore v. Brown, 8 Vet. App. 406, 409 (1995), the Court held that: Evidence which is simply information recorded by a medical examiner, unenhanced by any additional medical comment by that examiner, does not constitute "competent medical evidence"...[and] a bare transcription of a lay history is not transformed into "competent medical evidence" merely because the transcriber happens to be a medical professional. The veteran testified during a hearing held in April 1998 that he did not recall injuring his hip in service, but said that he ran a lot and had pain in the hip. He felt that a hip problem had developed as a result of the many miles of running which he did in order to stay in shape in service. The Board notes that the veteran can testify as to observable matters for purposes of well grounding the claim, but he must provide more than his own lay opinion as to whether a current disorder is related to service. Lay persons, however well intentioned, are not qualified to offer an opinion that requires medical expertise. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). See also Grottveit v. Brown, 5 Vet. App. 91, 93 (1993) (a veteran does not meet his burden of presenting evidence of a well-grounded claim where the determinative issue involves medical causation and the veteran presents only lay testimony by persons not competent to offer medical opinions). In summary, the veteran has not presented any competent medical evidence linking a disorder of the left hip to his periods of service. Even assuming that the veteran's testimony satisfied the service-incurrence requirement to well ground the claim under Savage, medical evidence would be required to establish a relationship between the present disability and symptoms described by the veteran during and after service. Savage, 10 Vet. App. 397. Accordingly, the Board concludes that the claim for service connection for a left hip disorder is not well-grounded. II. Entitlement To Service Connection For A Left Knee Disorder. The veteran testified in support of his claim for service connection for a left knee disorder during a hearing held in April 1998. He stated that his knees swelled during service including the period he was in Vietnam. He said that he had to wear a knee brace starting in 1991 or 1992. He also said that he believed that he snapped a tendon while in was on active duty for training in Honduras in 1992 or 1993. As noted above, the veteran's own belief that a current knee disorder is related to service is not enough to render a claim well grounded. The Board finds that the veteran's belief is not supported by any medical evidence. A medical record dated in March 1995 from Thomas E. Klootwyk, M.D., shows that the veteran was seen for evaluation of his left knee which he had injured during the previous May. He reportedly stepped off a curb and felt some discomfort in the knee. He had intermittent pain since then. He said that it had not really limited him in any way, and that he continued to be active. Examination showed no effusion, patellofemoral tenderness, or real medial or lateral retinacular pain. There was also no joint line discomfort. There was a negative Lachman's and a negative posterior drawer. Gait was normal. The impression was left knee patellofemoral pain. The Board notes that the report does not contain any indication that the disorder was related to service. The report of an examination of the veteran's joints conducted by the VA in March 1997 shows that the veteran gave a history of having a left knee disorder that began in service. Following examination, the examiner commented that the veteran had some patellofemoral and early arthritic type pain in both knees. The examiner could not find any evidence of ligament damage. He felt that the veteran probably had some degenerative changes of the knees. The examiner did not offer an opinion linking these changes to service. The Board again notes that the fact that the report contains the veteran's account of having developed a knee disorder in service is not enough to provide support for the claim. Similarly, the report of an examination of the veteran's joints conducted by the VA in June 1998 also does not contain any medical opinion linking a current knee disorder to service. In summary, the veteran has not presented any competent medical evidence linking a disorder of the left knee to his periods of service. Accordingly, the Board concludes that the claim for service connection for a left knee disorder is not well grounded. III. Entitlement To Service Connection For Diabetes Mellitus. The veteran testified in support of his claim for service connection for diabetes mellitus during a hearing held in April 1998. He said that the diabetes was not diagnosed until 1994 or 1995. However, he felt that a blood test which was taken while he was on active duty for training at the National Defense college in 1989 showed an elevated glucose level and elevated liver function levels. The veteran testified that he believed that this elevated glucose level and liver function levels represented the onset of diabetes. A service medical record from October 25, 1989, during a period of active duty for training shows that a blood test revealed a slightly high level of glucose. However, there was no diagnosis of a disease such as diabetes mellitus noted. A discharge summary from the St. Vincent Hospital dated in July 1995 shows that the diagnoses included borderline blood sugar. However, there was no indication that this was related to service. The report of an alimentary appendages examination conducted by the VA in March 1997 shows that the veteran gave a history of having diabetes, and of having an elevated liver function test since 1989. Following examination, the impression was that the veteran was a 51 year old male with diabetes, and an elevated liver function test since 1989. The examiner concluded that "the most likely etiology for his elevated function test is due to non-alcoholic hepatitis, could be due to obesity and diabetes." To the extent that this statement may be interpreted as suggesting that the elevated liver function test noted during active duty for training could have been due to diabetes, the doctor's statement is not sufficient to establish a well-grounded claim. This statement clearly leaves open the possibility that the elevated liver function test was not associated with diabetes. A medical opinion expressed in terms of "may," also implies "may or may not" and is too speculative to establish a plausible claim. See Obert v. Brown, 5 Vet. App. 30 (1993). Such a speculative statement does not justify a belief by a fair and impartial individual that the claim is well grounded. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that a physician's statement that a service- connected disorder "may or may not" have prevented medical personnel from averting the veteran's death was not sufficient evidence to render a claim well grounded); see also Beausoleil v. Brown, 8 Vet. App. 459 (1996) (holding that a general and inconclusive statement about the possibility of a link was not sufficient to make a veteran's service connection claim well grounded); Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992) (holding that there was a plausible basis for the Board's decision that a disability was not incurred in service where even the medical evidence favorable to the appellant's claim did little more than suggest the possibility that the veteran's illness might have been caused by his wartime radiation exposure). A letter dated in July 1998 from Jeffrey Hilburn. M.D., of the Indiana Neurology Associates, shows that the veteran had a three year history of non-insulin dependent diabetes. The Board notes that this history places the date of onset of the diabetes after service. The letter does not contain any indication that the diabetes was related to service. The veteran has also raised an alternative theory of entitlement based on a belief that the diabetes might be related to exposure to Agent Orange while he was in Vietnam. The Board notes that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam era, and has a disease listed at 38 C.F.R. § 3.309(e), shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. See 38 C.F.R. § 3.307(a)(6)(iii) (1999). If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service-connected if the requirements of 38 U.S.C.A. § 1116, 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, Porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx, or trachea), and soft-tissue sarcomas (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). See 38 C.F.R. § 3.309(e) (1999). Thus, service connection may be presumed for residuals of Agent Orange exposure by showing two elements. First, a veteran must show that he served in the Republic of Vietnam during the Vietnam War era. See 38 U.S.C.A. § 1116 (West 1991); 38 C.F.R. § 3.307(a)(6) (1999). Second, the veteran must be diagnosed with one of the specific diseases listed in 38 C.F.R. § 3.309(e). See Brock v. Brown, 10 Vet. App. 155, 162 (1997). If a disorder is not listed in 38 C.F.R. § 3.309(e), the presumption of service connection related to Agent Orange is not available, and the presumption of exposure to herbicides is also precluded. McCartt v. West, 12 Vet. App. 164 (1999). The Board notes further, the Secretary of the Department of Veterans Affairs has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 61 Fed. Reg. 57586-57589 (1996); 64 Fed. Reg. 59232-59243 (1999). Even if an appellant is found not entitled to a regulatory presumption of service connection, the claim must still be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727- 29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation). However, as will be discussed below, where the issue involves such a question of medical causation, competent evidence which indicates that the claim is plausible is required to set forth a well-grounded claim. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board notes initially that the disability for which he seeks compensation is not among the diseases which may be presumed to have been due to exposure to herbicides in Vietnam. Moreover, the Board finds that the nexus requirement has not been satisfied by fulfillment of alternate means of establishing this requirement. The Board has considered the veteran's own opinion that there was a relationship between his diabetes and his exposure to Agent Orange in service. However, the Court has held that lay persons, such as the veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5 (1992). Furthermore, the veteran has not presented any medical opinion showing a link between his disability and herbicide exposure. In summary, the veteran has not presented any competent medical evidence linking diabetes mellitus to his periods of service or to exposure to herbicides. Therefore, the claim for service connection for diabetes mellitus is not well grounded. As the duty to assist has not been triggered here by a well-grounded claim, the Board finds that the VA has no obligation to further develop the veteran's claim. Accordingly, the Board is not required to remand the case for further evidentiary development. See 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997); Epps, 126 F.3d at 1464; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). IV. Entitlement To A Higher (Compensable) Initial Rating For Nerve Damage Of The Right Little Toe, Currently Rated As Noncompensably Disabling. The veteran's claim for a higher initial disability rating is "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue on appeal has been obtained. The evidence includes the veteran's service medical records, and post-service medical treatment records. The veteran has been afforded disability evaluation examinations. He also had a personal hearing. The Board does not know of any additional relevant evidence which is available. Therefore, no further assistance to the veteran with the development of evidence is required. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. The assignment of a particular diagnostic code is dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. In reviewing the claim for a higher rating, the Board must consider which diagnostic code or codes are most appropriate for application in the veteran's case and provide an explanation for the conclusion. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). Since the appeal for higher evaluations arises from the initial rating decisions which established service connection for each disability and assigned the initial disability evaluations, the entire rating period is to be considered including the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. See Fenderson v. West, 12 Vet. App. 119 (1999). The issue has been characterized accordingly. Under 38 C.F.R. § 4.124a, Diagnostic Codes 8524 and 8724, a 10 percent rating is warranted if there is mild incomplete paralysis of the internal popliteal nerve. A 20 percent rating is warranted if there is moderate incomplete paralysis, A 30 percent rating is warranted if there is severe incomplete paralysis. A 40 percent rating is warranted if there is complete paralysis, with plantar flexion lost, frank adduction of the foot impossible, flexion and separation of the toes abolished; no muscle in the sole can move; or, in lesions of the nerve high in the popliteal fossa, plantar flexion of the foot is lost. The Court has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on movements. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). The rating for an orthopedic disorder should reflect functional limitation which is due to pain which is supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is also as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity, or the like. See 38 C.F.R. § 4.40 (1999). The factors of disability reside in reductions of their normal excursion of movements in different planes. Instability of station, disturbance of locomotion, and interference with sitting, standing, and weight bearing are related considerations. See 38 C.F.R. § 4.45 (1999). It is the intention of the rating schedule to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. See 38 C.F.R. § 4.59 (1999). A letter dated in August 1993 from Thomas E. Klootwyk, M.D., of the Sports Medicine Center, shows that the veteran was seen for three problems including a problem with his right foot that began about two months earlier after he wore tight fitting combat boots for over two days. He said that he was marching about 6 to 10 miles per day during that period. Since then, he had significant metatarsal pain at the 3rd and 4th metatarsal heads. Recently, he had noted some numbness extending into the toes and between the 2nd and 3rd metatarsal head areas. In addition, he also had pain on the metatarsal head itself volarly. Physical examination of the right foot showed no obvious areas of swelling. There was tenderness over the 2nd and 3rd metatarsals. He had pain with metatarsal pressure. X-rays of the foot were negative. The pertinent impression was right foot early Morton's neuroma with metatarsalgia. A medical treatment record obtained from John Dugan, M.D., dated in January 1996, shows that the veteran complained of having numbness in the little toe. The report of an examination of the veteran's joints conducted by the VA in March 1997 shows that the veteran gave a history of developing numbness in the right little toe after wearing combat boots that were too tight. He said that it had not gone away, but that it was not too bothersome. He also said that it did not affect that motion or strength, but left him with numbness. On examination, there was numbness of the 5th toe of the right foot. The rest of the examination of the foot was normal. The impression was right foot numbness which is probably the result of nerve damage. The veteran testified in support of his claim for a compensable rating for the right little toe disorder during a hearing held in April 1998. He said that he did not have pain, but that the toes were completely numb on a continuous basis. He also said that the toe did not seem to be as mobile as compared to the toe on the other foot. A letter dated in July 1998 from Jeffrey Hilburn. M.D., of the Indiana Neurology Associates, shows that the veteran had a three year history of non-insulin dependent diabetes. It was also noted that he had a history of developing pain in his right foot in 1994. He was diagnosed as having a Morton's neuroma, prescribed different footwear, and the pain resolved. Subsequently, however, he noted numbness in the small toes on the right foot. On examination, there was decreased sensation in both feet. The examiner indicated that the findings were consistent with a primarily demyelinating peripheral polyneuropathy. After considering all of the relevant evidence, the Board finds that the nerve damage of the right little toe has resulted in mild incomplete paralysis of the right little toe. Accordingly, the Board concludes that the criteria for a 10 percent rating for nerve damage of the right little toe are met. The Board further finds, however, that moderate incomplete paralysis has not been demonstrated. In this regard, the Board notes that, other than the numbness, there has been no objectively verified impairment of the toe. Accordingly, a 20 percent rating is not warranted. Further, the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." See 38 C.F.R. § 3.321(b)(1)(1999). There has been no showing that the veteran's service-connected disability has resulted in marked interference with employment or necessitated frequent periods of hospitalization. He has not been hospitalized for the disorder and there has been no objective evidence submitted that the veteran is unemployable due to the disability or that he has lost substantial periods of time from work. Under these circumstances, the Board finds that the veteran has not demonstrated frequent periods of hospitalization or marked interference with employment so as to render impractical the application of the regular rating schedule standards. In the absence of such factors, the Board finds that criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER 1. Service connection for a left hip disorder is denied. 2. Service connection for a left knee disorder is denied. 3. Service connection for diabetes mellitus is denied. 4. A 10 percent rating for nerve damage of the right little toe is granted, subject to the law and regulations applicable to the payment of monetary benefits. WARREN W. RICE, JR. Member, Board of Veterans' Appeals