Citation Nr: 0006364 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 98-11 287 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a respiratory disorder. 2. What evaluation is warranted for the period from November 4, 1997, for bulimia. 3. What evaluation is warranted for the period from November 4, 1997, for fibromyalgia. 4. What evaluation is warranted for the period from November 4, 1997, for post-traumatic arthritis of the cervical spine. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Christopher J. Gearin, Associate Counsel INTRODUCTION The veteran had active service from August 1984 to November 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. As noted by the RO in the November 1998 supplemental statement of the case, the veteran withdrew her appeal for entitlement to service connection for residuals of a cesarean section on the record at the August 1998 hearing at the RO. The RO also noted in the November 1998 supplemental statement of the case that, in November 1998, the veteran submitted a VA Form 21-4138 in which she withdrew her increased rating claims for dysthymia, intervertebral disc syndrome, Meniere's disease with hearing loss and vertigo, and a bilateral wrist disorder. However, she specifically continued her appeal for the issues listed on the title page of this decision. Therefore, the Board will address these issues in decision below. The RO further noted in the November 1998 supplemental statement of the case that the veteran had not withdrawn the issue of entitlement to service connection for amputation of three or more toes of the right foot, not to include the great toe, and, therefore, it was still on appeal. The Board notes, however, that the hearing officer granted service connection for this disorder in an August 1998 decision. Therefore, given that this issue has been resolved in the veteran's favor, and no other issue concerning that disability has been developed for appeal, the Board will not address it further. The issue concerning entitlement to a compensable evaluation for a cervical spine disability will be addressed in the remand that follows this decision. FINDINGS OF FACT 1. The claim of entitlement to service connection for a respiratory disorder is not supported by cognizable evidence demonstrating that the claim is plausible or capable of substantiation. 2. The veteran's service-connected bulimia is not manifested by incapacitating episodes of up to two weeks total duration per year, requiring bed rest and treatment by a physician. 3. The veteran's service-connected fibromyalgia is manifested by complaints of muscle pain and fatigue resulting in no pertinent symptoms present more than one- third of the time. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for a respiratory disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The schedular criteria for a compensable evaluation from November 4, 1997 for bulimia have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. § 4.130, Diagnostic Code 9521 (1999). 3. The schedular criteria for a rating in excess of 10 percent from November 4, 1997 for fibromyalgia have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40-4.46, 4.71a, Diagnostic Code 5025 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service connection The veteran is seeking service connection for a respiratory disorder. The legal question to be answered initially, however, is whether the veteran has presented evidence of a well-grounded claim; that is, a claim that is plausible. If she has not presented a well-grounded claim, her appeal must fail and there is no duty to assist her with any further development. 38 U.S.C.A. § 5107(a). As will be explained below, the Board finds that this claim is not well grounded. The law provides that service connection may be granted for 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). However, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Three discrete types of evidence must be present in order for a veteran's claim for benefits to be well grounded: (1) There must be competent evidence of a current disability, usually shown by medical diagnosis; (2) There must be evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence; and (3) There must be competent evidence of a nexus between the inservice injury or disease and the current disability. Such a nexus must be shown by medical evidence. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the United States Court of Claims for Veterans Appeals (the Court), lay observation is competent. The veteran's service medical records show various respiratory complaints. For example, in November 1986 she was assessed with sinusitis. Nevertheless, an x-ray study of her sinuses was negative. In August 1992, she was assessed with sinusitis again. An August 1993 outpatient note is negative for asthma. In January 1997 she was assessed with bronchitis due to a cough she had had for two weeks. A Medical Evaluation Board report, apparently written in the summer of 1997, notes by history that the service last treated the veteran for sinusitis in August 1992 with no recurrence. The September 1997 service retirement examination report is negative for respiratory pathology. Post service medical records are negative for bronchial asthma. For example, a September 1998 VA respiratory examination report, which includes x-ray studies of the chest and sinuses, is negative for pathology of the respiratory system. The Board notes that, although the same VA examiner in a different September 1998 evaluation report diagnosed chronic sinusitis, he stated that there was no tenderness of the sinuses and no discharge from the nasal mucosa. He also stated that he had to check a sinus film to rule out chronic sinusitis. The x-ray studies of the chest and sinuses were negative. In addition, no medical examiner has related any claimed sinus or respiratory disability to the veteran's service. As noted above, competent evidence of a current disability that is medically linked to service is essential in establishing a well-grounded claim. Hence, without competent evidence that a current respiratory disorder is linked to service, this claim is not well grounded. Epps. The veteran testified in August 1998 that she did not recall ever being diagnosed with a respiratory disorder while in service, although once someone on a service hospital staff once told her that she had asthma. The service medical records, however, do not confirm this. Nevertheless, there is no medical evidence of record that establishes that the veteran currently has asthma. With respect to the foregoing the Board notes that, while the veteran claims that she developed a respiratory disorder either during or as a result of her service, she has offered no competent evidence to establish such a relationship, other than her own unsubstantiated contentions. While the veteran is certainly capable of providing evidence of symptomatology, "the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge..." Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Causative factors of a disease amount to a medical question; only a physician's opinion would be competent evidence. Gowen v. Derwinski, 3 Vet. App. 286, 288 (1992). A well-grounded claim requires more than a mere assertion; the claimant must submit supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The service medical records do not show the veteran with a chronic respiratory disorder during service. Although she was treated for sinusitis in August 1992, and bronchitis in January 1997, these disorders did not recur. Moreover, although a VA examiner diagnosed her with chronic sinusitis in September 1998, he had no diagnostic findings to support such a finding, and in addition he did not relate any findings to service. Hence, the veteran has provided no competent evidence that her claimed chronic sinusitis is in anyway related to her period of service. The Board finds, therefore, that she has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that her claim is well grounded. 38 U.S.C.A. § 5107. Hence, the benefit sought on appeal is denied. Contrary to the belief of the veteran and her representative that VA should develop this claim further, the Board notes that, absent the submission and establishment of a well- grounded claim, VA cannot undertake to assist an appellant in developing facts pertinent to that claim. Morton v. West, 12 Vet. App. 477, 486 (1999). Hence, the benefit sought on appeal is denied. As the foregoing explains the need for competent evidence of a current disability which is linked by competent evidence to service, the Board views its discussion above sufficient to inform the veteran of the elements necessary to complete her application for service connection for the claimed disability. Robinette v. Brown, 8 Vet. App. 69, 79 (1995). II. Original ratings The veteran is appealing the original disability evaluations assigned following the award of service connection, and, as such, the claims are well grounded. 38 U.S.C.A. § 5107(a); Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). In such a case as this, it is not the present level of disability that is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). After reviewing the evidence, which includes various VA examination reports, the Board is satisfied that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained and that no further assistance is required to comply with the duty to assist her mandated by 38 U.S.C.A. § 5107(a). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A. Factual background The service medical records indicate that the veteran was treated for bulimia and fibromyalgia. VA outpatient records from April to September 1998 reflect treatment for bulimia and fibromyalgia. In August 1998, the veteran appeared before a hearing officer at the RO and testified with respect to her service-connected disabilities, and provided the following information. She had been employed since leaving service. She worked as a para-professional in the educational system during the school year, and as a waitress during the summer. She had not seen a doctor since her discharge. With respect to bulimia, she would binge eat daily and use laxatives about 2-3 times a week, however, she had not been treating with a medical professional. She had missed work on two occasions due to this problem. With respect to fibromyalgia, she described constant pain in multiple joint, including the knees, ankles, wrists, and shoulders. Not all of the joints would hurt at the same time. The pain was constant and the only change she described was increased intensity. Her medication helped her sleep. The Board notes that in September 1998, a VA examiner evaluated the veteran with respect to her service-connected disabilities on appeal. The examiner indicated that he had reviewed the claims file prior to seeing the veteran. With respect to bulimia, the examiner noted by history that the veteran had experienced this condition since 1995. In March 1995, she was hospitalized for a month. She had never had parental nutrition or tube feeding. She indicated that she used laxatives but did not force vomit. She described periods of incapacitation that required bed rest. These occurred about every other month. Her current treatment involved meeting with a social worker. She indicated that she had lost time from work due to her eating disorder, totaling approximately two days over the last year. Physical evaluation revealed that she weighed 231 pounds. She stated that her weight fluctuated between 230 and 245 pounds. She described that she would binge eat daily and take laxatives. As noted, she never force vomited. The examiner observed that the veteran appeared to be competent and able to perform all activities of daily living, including her financial affairs. The diagnosis was bulimia. With respect to fibromyalgia, the veteran indicated that walking or exercising precipitated the pain. Her duties as a waitress aggravated the disorder immensely. She would rest and take anti-inflammatories to alleviate the pain. She remarked that the disorder affected her in many ways. For example, her back hurt the most, manifested by muscle weakness and stiffness. Her back was in constant spasm rated as 4 out 10. Flare-ups, which occurred once a month, were 9 out of 10. She had unexplained fatigue when she rested on the weekends. Her medications included Pamelor, for depression, and Motrin, for pain. She also participated in physical therapy. Physical examination revealed a slightly tender trapezius muscle and medial scapula border. The bilateral lower extremities were not tender. The examiner determined that her muscle strength was good throughout. The diagnoses were fibromyalgia, diagnosed but not confirmed, and myalgia of undetermined etiology. B. Analysis 1. Bulimia The regulations provide that a noncompensable rating is warranted for binge eating followed by self-induced vomiting or other measures to prevent weight gain, or resistance to weight gain even when below expected minimum weight, with diagnosis of an eating disorder but without incapacitating episodes; and a 10 percent rating is warranted for binge eating followed by self-induced vomiting or other measures to prevent weight gain, or resistance to weight gain even when below expected minimum weight, with diagnosis of an eating disorder and incapacitating episodes of up to two weeks total duration per year. 38 C.F.R. § 4.130, Diagnostic Code 9521. Furthermore, the regulation defines an incapacitating episode as a period during which bed rest and treatment by a physician are required. Id. Applying the facts to the law, the Board finds that the preponderance of evidence is against a compensable rating for bulimia because there is no competent evidence that she has been diagnosed with incapacitating episodes of up to two weeks total duration per year due to her eating disorder. Furthermore, the regulation requires bed rest and treatment by a physician. There is no evidence of this. Instead, she testified that she had not sought medical treatment for this disorder, except for talking to a social worker. Thus, although she indicated that she lost two days from work in the last year, this is not competent evidence because there is no evidence that she had bed rest and treatment by a physician. Therefore, the preponderance of evidence is against a compensable rating for bulimia. Furthermore, the evidence does not demonstrate that a compensable rating is warranted for any period of time from the effective date of the veteran's claim for service connection for bulimia to the present so as to warrant a "staged" rating. For the reasons stated, the Board finds that a compensable rating for service-connected bulimia is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9521. 2. Fibromyalgia The service-connected disability at issue has been described by the RO for rating purposes as fibromyalgia. "[F]ibro is a prefix denoting relationship to fibers: and "myalgia" is "muscular pain." Hoag v. Brown, 4 Vet. App. 209, 211 (1993). Under Diagnostic Code 5025 for fibromyalgia (fibrositis, primary fibromyalgia syndrome), with widespread musculoskeletal pain and tender points, with or without associated fatigue, sleep disturbance, stiffness, paresthesia, headache, irritable bowel symptoms, depression, anxiety, or Raynaud's-like symptoms, a 10 percent rating is for application when continuous medication is required for control and a 20 percent rating is for application when episodic, with exacerbations often precipitated by environmental or emotional stress or by overexertion, but that are present more than one-third of the time. The Board finds that the preponderance of evidence is against a rating in excess of 10 percent for fibromyalgia because there is no competent evidence that she experienced exacerbations at any time since discharge that were present more than one third of the time. For example, she reported to the VA examiner in September 1998 that the pain would flare-up once a month. Although the daily pain was constant, she took pain medication for relief. Thus, by her own statements, she did not experience exacerbations at any time since discharge that were present more that one third of the time. Moreover, the VA examiner did not find that the exacerbations were present more than one third of the time. Therefore, without competent evidence establishing that the veteran experienced exacerbations more than one third of the time, a rating in excess of 10 percent for fibromyalgia is not warranted. It should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. In reaching this decision the Board considered the provisions of 38 C.F.R. §§ 4.40, 4.45 as interpreted in DeLuca, however, a rating in excess of 10 percent is not warranted for several reasons. First, muscle pain and fatigue are essential elements of fibromyalgia. Thus, the Board has already factored them into the current 10 percent rating. Second, as noted above, the medical evidence of record fails to show that the symptoms are episodic with exacerbations that are present more than one-third of the time. Thus, a rating in excess of 10 percent is not warranted pursuant to 38 C.F.R. §§ 4.40, 4.45 as interpreted in DeLuca. Furthermore, the evidence does not demonstrate that a rating in excess of 10 percent is warranted for any period of time from the effective date of the veteran's claim for service connection for fibromyalgia to the present so as to warrant a "staged" rating. While the evidence of record reflects that the veteran experienced constant pain, it has not interfered with her ability to work. The evidence otherwise shows an overall picture of chronic and continuous pain, specifically in the low back, but without significant exacerbation. For the reasons stated, the Board finds that a rating for service-connected fibromyalgia in excess of the currently assigned 10 percent rating is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.40-4.46, 4.71a, Diagnostic Code 5025. ORDER Service connection for a respiratory disorder is denied. Entitlement to a compensable evaluation from November 4, 1997 for bulimia is denied. Entitlement to a rating in excess of 10 percent from November 4, 1997 for fibromyalgia is denied. REMAND The veteran's post-traumatic arthritis of the cervical spine is currently rated as noncompensable. 38 C.F.R. § 4.71a Diagnostic Code 5290. Under Diagnostic Code 5290, a slight limitation of the cervical spine warrants a 10 percent evaluation; and a moderate limitation of motion of the cervical spine warrants a 20 percent evaluation. The Board notes that while the veteran underwent a VA orthopedic examination in September 1998, her cervical spine disability was not evaluated. VA has a duty to assist the veteran in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107 (West 1991). The Court has held that the duty to assist includes the duty to obtain adequate and contemporaneous VA examinations, including examinations by specialists when indicated, and to obtain medical records to which the veteran has referred or which may be pertinent to the issues. Littke v. Derwinski, 1 Vet. App. 90 (1990); Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121 (1991). Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). In light of the foregoing, the Board finds that further development, as specified below, is required. Accordingly, the case is REMANDED to the RO for the following actions: 1. The veteran should be contacted and requested to provide the names, addresses and approximate dates of treatment for all VA and non-VA health care providers who have treated her for her cervical spine disability recently. With any necessary authorization, the RO should attempt to obtain and associate with the claims folder copies of all pertinent treatment reports identified by the veteran which are not currently of record. Once received, these records should be associated with the claims folder. 2. The RO should schedule the veteran for an examination by a board certified orthopedist, if available, to evaluate the veteran's service-connected cervical spine disability. The veteran should be informed of the possible consequences under 38 C.F.R. § 3.655 (1999) if she fails to report for the scheduled examination. All indicated studies, including complete X-rays, should be performed. Range of motion should be documented in degrees and the examiner should note any muscle spasms, tenderness, or atrophy. The examiner should provide complete and detailed discussion with respect to any weakness; fatigability; restricted movement; or pain on motion. The examiner should provide a description of the effect, if any, of the veteran's pain on the function and movement of her neck. See DeLuca v. Brown, 8 Vet. App. 202 (1995); See 38 C.F.R. § 4.40 (1999) (functional loss may be due to pain, supported by adequate pathology). The examiner is requested to completely review the claims folder prior to the examination, and to clearly differentiate all manifestations referable solely to the veteran's service-connected cervical spine disability. A complete rationale for all opinions and conclusions expressed should be given. 3. After the examination has been completed, the RO should review the examination report to insure that it complies with the directives of this remand, and if not, it must be returned for corrective action. 4. Then the RO should take any other necessary action, and readjudicate the issue on appeal, consistent with the staged rating provisions of the decision in Fenderson v. West, 12 Vet. App. 119 (1999), and DeLuca v. Brown, 8 Vet. App. 202 (1995). After completion of the requested actions, the RO should review the evidence and determine whether the veteran's claim may be granted. If not, the veteran and her representative should be provided with an appropriate Supplemental Statement of the Case. After allowing the veteran appropriate time to respond, the case should be returned to the Board for further appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to the final outcome warranted. No action is required of the veteran until she is notified by the RO; however she is informed that she may submit additional evidence in support of her claim during the period that her claim is in remand status should she so desire. NADINE W. BENJAMIN Acting Member, Board of Veterans' Appeals