Citation Nr: 0001418 Decision Date: 01/18/00 Archive Date: 01/27/00 DOCKET NO. 97-33 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a left hip disorder. 2. Entitlement to a temporary total disability evaluation under the provisions of 38 C.F.R. 4.30 based on a period of convalescence. 3. Entitlement to service connection for hypertension. 4. Entitlement to a compensable evaluation for residuals of bilateral fractures of the metatarsal bones of the feet. 5. Entitlement to a 10 percent disability evaluation for noncompensable service-connected disabilities pursuant to 38 C.F.R. 3.324. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. N. Booher, Associate Counsel INTRODUCTION The veteran had active service from July 1974 to July 1978. This appeal comes before the Board of Veterans' Appeals (Board) from January 1997 and August 1997 rating decisions of the Department of Veterans Affairs (VA) Regional Office Center in Pittsburgh, Pennsylvania (RO) which denied the benefits sought on appeal. FINDINGS OF FACT 1. There is no competent medical evidence of a nexus or relationship between the veteran's currently diagnosed left hip disorder, and his period of active service. 2. The veteran has not experienced a period of convalescence for a service- connected disability. 3. There is no competent medical evidence of a nexus or relationship between the veteran's hypertension, and his period of active service. 4. The veteran's disability from residuals of bilateral fractures of the metatarsal bones of the feet is currently manifested by complaints of pain and swelling, without objective evidence of functional defect, deformity, or skin or vascular changes. 5. The veteran's service connected disabilities do not interfere with normal employability. . CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for a left hip disorder is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The criteria for a temporary total disability rating for convalescence have not been met, and the veteran has not submitted a claim upon which relief may be granted. 38 C.F.R. § 4.30 (1999); Sabonis v. Brown, 6 Vet. App. 426 (1994). 3. The claim of entitlement to service connection for hypertension is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The criteria for a compensable evaluation for residuals of bilateral fractures of the metatarsal bones of the feet have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.20, 4.71, Diagnostic Code 5299-5283, 5284 (1999). 5. The criteria for a compensable evaluation for noncompensable, service-connected disabilities have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.324 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlment to service connection for a left hip disorder. The veteran contends that he is entitled to service connection for a left hip disorder. The VA may pay compensation for "disability resulting from personal injury or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in the active military, naval or air service." 38 U.S.C.A. § 1110 (West 1991). However, the threshold question that must be answered in this case is whether the veteran has presented a well-grounded claim for service connection. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. In this regard, 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." 38 U.S.C.A. § 5107(a) (West 1991); Grivois v. Brown, 6 Vet. App. 136, 140 (1994); Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). If the evidence presented by the veteran fails to meet this threshold level of sufficiency, no further legal analysis need be made as to the merits of the claim. Boeck v. Brown, 6 Vet. App. 14, 17 (1993). For a claim 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 disease or injury and the current disability. Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). For disorders subject to presumptive service connection, the nexus requirement may be satisfied by evidence of manifestation of the disease to the required extent within the prescribed time period, if any. See Traut v. Brown, 6 Vet. App. 495, 497 (1994); Goodsell v. Brown, 5 Vet. App. 36, 43 (1993). A claimant may also establish a well-grounded claim for service connection under the chronicity provision of 38 C.F.R. § 3.303(b)(1999), which is applicable where the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period, and that same condition currently exists. Such evidence must be medical unless the condition at issue is one which under case law, lay observation is considered competent to prove its existence. If the chronicity provision is not applicable, a claim still may be well- grounded pursuant to the same regulation if the evidence shows that the condition was observed during service or any applicable presumption period and continuity of symptomatology was demonstrated thereafter, and includes competent evidence relating the current condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). In this case, service medical records are negative for any complaints of or diagnosis of a left hip disorder. A June 1978 separation examination does not reflect any notation regarding a left hip disorder. Post-service medical records show the following. In April 1994, the veteran underwent a vascularized fibula transfer performed by Gary M. Ferguson, M.D. with Medical College Orthopaedics, Inc. In May 1994, Dr. Ferguson discussed the cause of the veteran's avascular necrosis of the left hip. He indicated that the veteran had previously received steroid injections in connection with a back disorder. He also indicated that in some cases a link has been shown between the development of avascular necrosis and steroid treatment. Dr. Ferguson opined that he could not definitively say whether there was a causative link between the veteran's avascular necrosis and steroid injections that he received for a back disorder. Dr. Ferguson did not discuss any other potential causes of the veteran's left hip disorder. In December 1994, the veteran underwent removal of the pin in his left hip and the bony prominence in the bone graft of the left hip was trimmed. In May 1995, the veteran was afforded a VA examination. The VA examination report reflects that the veteran complained of constant left hip pain. The veteran was diagnosed with avascular necrosis of the left hip, status post bone graft, symptomatic. A December 1995 VA treatment record indicates that the veteran's avascular necrosis of the left hip was secondary to steroid use for back pain. The veteran was afforded another VA examination in September 1996. X-rays revealed avascular necrosis of the left femoral head and left hip effusion. VA hospitalization reports dated January 1997 indicate that the veteran was admitted to undergo a left primary total hip arthroplasty. In April 1998, the veteran was noted to have full, painless range of motion in his left hip with well-healed incisions and his lower extremity was neurovascularly intact. A July 1998 VA medical record reflects that the cause of the veteran's avascular necrosis of the left hip was likely due to steroid injections he received for back pain. The record also reflects that the veteran denied sustaining any trauma to his left hip. Treatment records dated January 1999 show that the veteran had pain with internal and external rotation of his left hip. The evidence clearly shows that the veteran suffers from a current left hip disability. However, the veteran has not submitted any medical evidence that offers an opinion that his current left hip disability is in any way related to service. In fact, there is some evidence of record which suggests that the veteran's left hip disability may have been caused by steroid injections the veteran received for a back disorder. While the veteran believes that his left hip disability is related to service, the veteran, as a lay person is not competent to offer an opinion that requires medical expertise, such as the cause or etiology of his left hip disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In the absence of medical evidence of a nexus or relationship between the current disability and service, the veteran has not submitted a well-grounded claim for service connection and his claim must be denied on this basis. The Board is unaware of any outstanding evidence which could serve to well ground the veteran's claim, such as medical opinions that his left hip disability is etiologically related to active service. Should the veteran obtain such evidence, he may request that the RO again consider his claim for service connection. See 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). II. Entitlement to a temporary total disability evaluation under the provisions of 38 C.F.R. 4.30 based on a period of convalescence. The veteran contends that he is entitled to a temporary total disability rating for convalescence associated with treatment he received for his left hip disorder. A temporary total disability rating for convalescence in connection with a service connected disability will be assigned effective from the date of hospital admission or outpatient treatment, and will continue for 1, 2, or 3 months from the first day of the month following such hospital discharge or outpatient treatment (with the possibility of extensions being granted to cover additional months), if treatment of a service- connected disability resulted in one of the following: (1) surgery necessitating at least one month of convalescence (including outpatient surgery after March 1, 1989); (2) surgery with severe postoperative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited) (including outpatient surgery after March 1, 1989); and (3) immobilization by cast, without surgery, of one major joint or more (effective as to outpatient treatment March 10, 1976). 38 C.F.R. 4.30 (1999). VA hospitalization records dated January 22, 1997 to January 31, 1997 show that the veteran underwent a left primary total hip arthroplasty. While the record establishes that the veteran suffers from a left hip disorder and that he underwent surgery and experienced postoperative residuals, the veteran is not service connected for this disorder. Therefore, he is not entitled to a temporary total disability rating under 38 C.F.R. § 4.30. As such, the veteran's request for a temporary total disability evaluation for a period of convalescence must be denied. III. Entitlement to service connection for hypertension. As previously discussed, a grant of service connection is warranted where the veteran submits a well-grounded claim. For a claim 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 disease or injury and the current disability. Service connection may be presumed if cardiovascular-renal disease, including hypertension, is shown to have manifested to a degree of ten percent within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309(a) (1999). Where the determinative issue involves medical causation, competent medical evidence to the effect that the claim is plausible is required. See Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997). The veteran's service medical records reveal that a hypertension workup was recommended for the veteran in May 1978, at which time he was diagnosed with labile high blood pressure. However, there is no indication on the veteran's June 1978 separation examination that he was experiencing any ongoing problems with hypertension. VA treatment records from December 1995 through VA hospitalization reports and progress notes from January 1997 reveal that the veteran had a history of hypertension. In June 1996 the veteran's hypertension was classified as "controlled." A September 1996 VA examination report indicates that the veteran gave a history of having hypertension for approximately 5 to 7 years. It was noted that the veteran had been taking Zostril on a daily basis for hypertension for the previous two years. The examiner concluded that the veteran had a history of mild hypertension, which was well controlled with ongoing treatment. The evidence establishes that the veteran's hypertension was manifested during his period of active service and that he currently suffers from hypertension. However, the veteran has not submitted a medical opinion linking his hypertension to his period of active service, or establishing that his hypertension manifested to a compensable degree within one year of discharge from service. Therefore, the Board finds that the veteran has not submitted a well-grounded claim for service connection and it must be denied on this basis. In conclusion, the Board is unaware of any outstanding evidence which could serve to well ground the veteran's claim, such as medical opinions linking his hypertension to active service. Should the veteran obtain such evidence, he may request that the RO again consider his claim for service connection. See 38 U.S.C.A. § 5103 (West 1991); McKnight v. Gober, 131 F.3d 1483, 1484-85 (Fed. Cir. 1997). IV. Entitlement to a compensable evaluation for residuals of bilateral fractures of the metatarsal bones of the feet. The veteran alleges that he is entitled to a compensable disability evaluation for residuals of bilateral fractures of the metatarsal bones of the feet. The veteran's allegation that he is entitled to an increased disability evaluation, standing alone is sufficient to establish a well-grounded claim for a higher evaluation under 38 U.S.C.A. § 5107(a) (West 1991). The Board is also satisfied that the VA has fulfilled its duty to assist the veteran by obtaining and fully developing all relevant evidence necessary for the equitable disposition of this claim. Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making a disability evaluation. 38 C.F.R. § 4.1 (1999). However, the current level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). By rating decision dated January 1979, the RO granted service connection for and found by analogy the residuals of the veteran's bilateral fractures to be 0 percent disabling pursuant to Diagnostic Code (DC) 5284-5299. This noncompensable disability evaluation was continued by rating decisions dated August 1983 and January 1997. In evaluating the veteran's appeal, the Board will also consider DC 5283. Pursuant to DC 5283, a 10 percent disability evaluation is assignable for moderate malunion of, or nonunion of tarsal, or metatarsal bones. A 20 percent evaluation is warranted for moderately severe malunion of or nonunion of tarsal or metatarsal bones and a 30 percent disability evaluation is assignable for severe malunion of, or nonunion of tarsal or metatarsal bones. The note to DC 5283 indicates that with the actual loss of the use of the foot, a 40 percent disability evaluation is appropriate. DC 5284 provides for a 10 percent disability evaluation for other foot injures which are moderate. A 20 percent disability evaluation is assignable for a moderately severe foot injury and a 30 percent evaluation is warranted for a severe foot injury. As with DC 5283, a 40 percent disability evaluation is appropriate where there is an actual loss of the use of the foot. The RO assigned the initial noncompensable rating based on a review of service medical records and a January 1979 VA medical examination. Collectively these records indicate that the veteran complained of bilateral foot pain in May 1976 and was diagnosed with bilateral stress fractures of the metatarsal bones of the feet in July 1976. He continued to experience pain throughout his period of active service, and in 1979 the veteran was diagnosed with status post fracture of the metatarsal bones in both feet with subjective residuals. By rating decision dated January 1997, the RO continued the veteran's noncompensable rating for residuals of fractures of metatarsal bones of the feet. This evaluation was based on a review of a September 1996 VA examination report, which showed that the veteran complained of occasional pain in his feet that increased with activity and cold weather. He described the pain as being "achy" in nature and indicated that it was sometimes associated with swelling. Physical examination revealed that the veteran had a normal gait and his feet appeared normal with no functional defect. He had full range of motion, with no deformity, no skin or vascular changes. X-rays were normal and the veteran was diagnosed with a history of bilateral foot fractures while in the military with occasional residual pain and swelling. The evidence of record shows that the veteran experiences no more than minimal symptomatology as a result of residuals of his bilateral foot fractures, and he has not submitted any additional evidence since the January 1997 RO decision to demonstrate that his current disability has increased in severity. Therefore upon a review of the evidence of record, the Board does not find that a compensable disability evaluation is warranted. While the Board does not doubt the sincerity of the veteran's claim, under the applicable diagnostic criteria which the Board must consider, the preponderance of the evidence is against entitlement to a compensable disability evaluation at this time. It follows that the reasonable doubt provisions of 38 U.S.C.A. § 5107(b) do not otherwise permit a favorable resolution of the appeal. The veteran may always advance a new claim for an increased rating should the severity of the disability increase in the future. V. Entitlement to a 10 percent disability evaluation based on noncompensable, service-connected disabilities. The veteran contends that he is entitled to a 10 percent disability evaluation for noncompensable, service-connected disabilities pursuant to 38 C.F.R. § 3.324 (1999), which provides that: Whenever a veteran is suffering from two or more separate permanent service- connected disabilities of such character as clearly to interfere with normal employability, even though none of the disabilities may be of compensable degree under the 1945 Schedule for Rating Disabilities the rating agency is authorized to apply a 10-percent rating, but not in combination with any other rating. The veteran is service connected for residuals of bilateral fractures of the metatarsal bones of the feet and for deafness. Both of these disabilities have been assigned noncompensable disability evaluations. There is no indication upon review of the veteran's history and the medical records that the service-connected disabilities are productive of impairment which would interfere with normal employability. In this regard, it is noted that on the most recent examination, there was no indication that the veteran's feet or deafness disabilities were significantly symptomatic. Overall, the record indicates that these disabilities are productive of minimal, if any, impairment, and the record demonstrates no evidence of any appreciable impact upon his ability to function generally based on the medical evidence of record. Therefore, the Board concludes that a 10 percent rating in accordance with the provisions of 38 C.F.R. § 3.324 is not warranted. ORDER 1. Entitlement to service connection for a left hip disorder is denied. 2. Entitlement to a temporary total disability evaluation for a period of convalescence is denied. 3. Entitlement to service connection for hypertension is denied. 4. Entitlement to a compensable disability evaluation for residuals of bilateral fractures of the metatarsal bones of the feet is denied. 5. Entitlement to a 10 percent evaluation in accordance with the provisions of 38 C.F.R. § 3.324 is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals