Citation Nr: 0003826 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 98-14 181A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for residuals of syphilis. 2. Entitlement to service connection for plantar calluses. 3. Entitlement to service connection for right thumb fracture residuals, status post arthrodesis, on a secondary basis. 4. Entitlement to an increased (compensable) evaluation for residuals of removal of heloma, right foot. 5. Entitlement to an increased rating for residuals of a shell fragment wound to the right wrist with radial neuropathy and postoperative neurolysis, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The veteran served on active duty from March 1967 to April 1969. The issues currently on appeal arise before the Board of Veterans' Appeals (Board) from a June 1998 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The issues of entitlement to an increased ratings for right wrist shell fragment wound residuals with radial neuropathy and postoperative neurolysis and residuals of removal of heloma, right foot, are addressed in the REMAND portion of this decision. FINDINGS OF FACT 1. There is no competent medical evidence of record that clinically confirms the presence of any residual disability resulting from syphilis. 2. There is no competent medical evidence of a nexus between the current plantar calluses and service. 3. Service connection is in effect for right wrist shell fragment wound residuals with radial neuropathy and postoperative neurolysis, currently evaluated as 20 percent disabling. 4. There is no competent evidence of record to relate the presence of the veteran's fracture of the right thumb to his service-connected right wrist shell fragment wound residuals with radial neuropathy and postoperative neurolysis. CONCLUSIONS OF LAW 1. The veteran's claim for entitlement to service connection for residuals of syphilis is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The veteran's claim for entitlement to service connection for plantar calluses is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim for service connection for right thumb fracture residuals is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in line of duty. 38 U.S.C.A. § 1110 (West 1991). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303 (1999). Regulations also provide that 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) (1999). The threshold question that must be resolved is whether the veteran has presented evidence that his claims for service connection are well grounded. See 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). A well-grounded claim is a plausible claim, meaning a claim, which is meritorious. See Murphy, 1 Vet. App. at 81. An allegation that a disorder should be service connected is not sufficient; the appellant must submit evidence in support of a claim that would justify a belief by a fair and impartial individual that the claim is plausible. See 38 U.S.C.A. § 5107(a) (West 1991); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). See also Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The United States Court of Appeals for Veterans Claims (Court) has held that in order to be a well- grounded claim, there must be competent evidence of a current disability (a medical diagnosis); incurrence or aggravation of a disease or injury in service (lay or medical evidence); and a nexus between the inservice injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet.App. 498 (1995). For the purpose of determining whether a claim is well grounded, the evidence in support of the claim is presumed credible. See Robinette v. Brown, 8 Vet. App. 69; Justus v. Principi, 3 Vet. App. 510, 513 (1992). When a claim is well grounded, VA has a duty to assist the appellant "in developing the facts pertinent to the claim." 38 U.S.C.A. § 5107(a) (West 1991). I Service Connection for Residuals of Syphilis The veteran contends that he originally contracted syphilis while on active duty. He states that he has been told by physicians at the VA Medical Center that he still has traces of syphilis in his blood. A report of medical examination conducted at the time of the veteran's induction, dated in March 1967, shows that serology testing revealed the presence of a "RPR" [rapid plasma reagin] reaction, 1:8. A clinical record dated in January 1968 shows that the veteran was treated for "lues" [syphilis] at the time of his service entrance. He was evaluated in June 1968 for a titer of 1:8. The veteran denied a history of symptoms of lues (syphilis). It was reported that on induction he was diagnosed with lues and treated with 4 injections of penicillin. He was seen in December 1968. At that time it was reported that he had been evaluated in June 1968 at which time the titer was 1:4. He was to return for monthly serology but did not due so. In December 1968 the impression was most likely possibility of latent syphilis, adequately treated. Serology was STS reactive. A spinal tap ruled out neurosyphilis. The impression was latent syphilis, treated. A 1969 February medical board examination showed that serology was reactive. The impression was latent syphilis. The report of a medical board proceeding, dated in February 1969, shows a diagnosis of latent syphilis. The report also notes that the syphilis had been treated, and that the condition existed prior to service. A service re-evaluation examination conducted in March 1972 and a VA examination conducted in April 1973 did not evaluate for syphilis. A VA examination was in December 1997. The medical revealed that the veteran reportedly tested positive for syphilis in 1967. He stated that he was also treated in service for this condition. The veteran also noted that upon being treated in 1994 following his involvement in an automobile accident he was again diagnosed as having syphilis. He complained of no symptoms associated with the disorder. The examination showed no evidence any current syphilitic process or any sequelae of syphilis. Serum was RPR reactive. The diagnosis was history of syphilis, treated, no clinical sequelae. An August 1998 VA general examination revealed a diagnosis of syphilis by history. To summarize, when 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, supra. Lay assertions of medical causation, or substantiating a current diagnosis, cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a) (West 1991); if no cognizable evidence is submitted to support a claim, the claim cannot be well grounded. Id. While the veteran is competent to describe the symptoms associated with his claimed syphilis disorder, a diagnosis and an analysis of the etiology regarding such symptoms requires competent medical evidence and cannot be evidenced by the veteran's lay statements. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this regard, as previously set forth, in order to have a well-grounded claim there must be medical evidence of a current disability. The August 1997 VA examination showed no evidence of any residual disability resulting from syphilis. Although the serology was reactive, this is a laboratory finding and not a disease or disability. Accordingly, the veteran has not submitted any competent medical evidence nor is there any competent medical evidence of record that shows a current disability involving syphilis. Therefore, his claim is not well grounded and must be denied. The Board finds that the RO has complied with 38 U.S.C.A. § 5103(a) (West 1991) and that the veteran has been advised of the evidence necessary to complete his claim. Robinette, supra. Finally, the evidence is not in equipoise as to warrant consideration of the benefit of the doubt doctrine. 38 U.S.C.A. § 5107 (West 1991). II Service Connection for Plantar Calluses The veteran contends the plantar calluses are the same as the heloma which was removed in service and service connection should be granted. As noted as part of the VA Form 646, dated in April 1999, it is asserted that the veteran has had calluses since his period of active service as a result of walking in boots. It was also asserted that the calluses were sore and hurt the veteran when he walked. A review of the veteran's service medical records shows that heloma on the plantar aspect of the right foot was diagnosed, and removed, in May 1968. The remaining service medical records reflect no complaint or finding relative to calluses. A 1969 February medical board examination clinically evaluated the feet as normal. A service re-evaluation examination conducted in March 1972 clinically evaluated the feet as normal. A VA examination conducted in April 1973 showed no abnormality of the feet. A VA examination was conducted in December 1997. At that time the veteran stated that had plantar calluses ever since his service separation. He indicated that the calluses were caused by walking in boots. He noted that the calluses were located mainly beneath his little toe and that they were sore, causing him to suffer a functional loss due to pain. The examination revealed calluses present over the distal aspect of the 5th metatarsal bilaterally. Less severe calluses were also shown to be present over the heels. Plantar calluses were diagnosed. The report of a VA examination dated in August 1998 shows that a disorder involving calluses was not diagnosed. To summarize, the veteran is competent to describe symptoms associated with a disease or disability. However, a lay person not competent to make a medical diagnosis, or to relate a given medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In this regard, the service medical records contain only one reference to heloma, which involved the right foot. Service connection has been granted for this disorder. Additionally service examinations in February 1969 and March 1973 showed no abnormality involving the feet. The first postservice medical evidence of calluses involving the feet was the August 1997 VA examination many years after service. The veteran has not submitted any competent medical evidence nor is there any competent medical evidence of record which relates the currently diagnoses plantar calluses to service. The Board finds that the RO has complied with 38 U.S.C.A. § 5103(a) (West 1991) and that the veteran has been advised of the evidence necessary to complete his claim. Robinette, supra. Finally, the evidence is not in equipoise as to warrant consideration of the benefit of the doubt doctrine. 38 U.S.C.A. § 5107 (West 1991). III Service Connection for Fracture of the Right Thumb on a Secondary Basis As noted as part of the veteran's substantive appeal, as shown on a VA Form 9, received by VA in September 1998, the veteran asserts that service connection for a right thumb disorder is warranted. He claims that his service-connected right wrist disability caused him to have an automobile accident, which resulted in his right thumb disorder. In addition to the laws and regulations set out above, service connection may also be granted for a disability, which is proximately due to, or the result of a service- connected disorder. 38 C.F.R. § 3.310(a) (1999). Additionally, the Court has held that a claimant is entitled to service connection on a secondary basis when it is shown that the claimant's service-connected disability aggravates a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Court stated that, pursuant to 38 U.S.C.A. § 1110 and 38 C.F.R. § 3.310(a), when aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Service connection is in effect for residuals of a shell fragment wound to the right wrist with radial neuropathy and postoperative neurolysis, currently rated as 20 percent disabling. A private operative report, dated in September 1997, shows that the veteran gave a history of prior trauma to his right thumb. Significant instability with crepitance of the MCP [metacarpophalangeal joint] was observed. A right thumb MCP arthrodesis procedure was accomplished. The preoperative and postoperative diagnoses were the same: traumatic arthropathy of the right thumb MCP joint. A VA X-ray report dated in December 1997 includes a diagnosis of residual shrapnel in the soft tissues around the right wrist and minor degenerative arthritis of the wrist. X-rays also showed fusion with three pins in the first metacarpal proximal phalanx, with minor degenerative joint disease of the fingers. The report of a VA neurological examination, also dated in December 1997, includes a diagnosis of medial and ulnar neuropathy of the right wrist and hand, secondary to 1968 injuries. The report notes that the veteran claimed to suffer from difficulty in using his right hand ever since his 1968 injury, and that he had weakness of the grip, feeling of coldness and aching, together with no feeling in his right thumb. The report notes that the veteran sustained an injury to his right thumb as a result of a 1996 automobile accident, and, since that time, his symptoms and pain had become progressive worse. Examination revealed diminished sensation of the radial aspect of the dorsum of the right hand in the region of the thumb, as well as the second and third finger. Considerable impairment of the extension and flexion of the thumb was also noted, suggesting impairment of the pollicis musculature. The examiner noted that these impairments were probably neurogenic in origin rather than primary. The diagnosis was medial and ulnar neuropathy of the right hand secondary to 1968 injuries. A VA hand, thumb, and fingers examination was conducted in December 1997. At that time the veteran reported that in 1996 he was driving a dump truck when the truck turned over 4 times. At that time he broke his right thumb. He stated that this 1996 accident resulted in the increasing severity of his right thumb condition. An examination revealed mild swelling around the thumb at the site of the operative incision. X-rays showed fusion with three pins in the first metacarpal proximal phalanx, with minor degenerative joint disease of the fingers. The diagnosis was, in pertinent part, history of fracture of the right thumb in 1996, status post arthrodesis, right thumb, metacarpal phalangeal joint, 1997, still undergoing active treatment. To summarize, the veteran's assertion that there is a causal relationship between his right thumb disorder and his service-connected right wrist injury residuals is not competent to establish diagnoses or causation. As noted above, medical diagnosis and causation involve questions that are beyond the range of common experience and common knowledge and require the special knowledge and experience of a trained physician. Espiritu, supra. Nothing in the record indicates that the veteran has the appropriate knowledge or experience to make these determinations nor is it contended otherwise. The evidence indicates that the veteran sustained a fracture of the right thumb while driving a dump truck in 1996. However, he has not submitted any competent medical evidence nor is the any competent medical evidence of record which establishes a relationship between the service connected residuals of the shell fragment wound to the right wrist and the truck accident in 1996. which resulted the fracture of the right thumb. Thus, an etiologic relationship between the veteran's service-connected right wrist disability and his right thumb disorder has not been established. Accordingly, the claim is not well grounded and must be denied. The Board finds that the veteran has been informed of the requirements for service connection through the issuance of a Statement of the Case and that no further obligations exist upon VA pursuant to Robinette, supra. ORDER Entitlement to service connection for residuals of syphilis is denied. Entitlement to service connection for plantar calluses is denied. Entitlement to service connection for fracture of the right thumb secondary to right wrist shell fragment wound residuals with radial neuropathy and postoperative neurolysis is denied. REMAND Initially, the Board notes that the veteran's claims for increased ratings for right wrist shell fragment wound residuals with radial neuropathy and postoperative neurolysis and the residuals of the excision of the heloma of the right foot are well grounded. See 38 U.S.C.A. § 5107(a) (West 1991); Proscelle v. Derwinski, 2 Vet. App. 629 (1992). VA has a statutory duty to assist the veteran in the development of a well-grounded claim. This includes the duty to conduct a thorough and contemporaneous medical examination under appropriate circumstances. Littke v. Derwinski, 1 Vet. App. 90 (1990). The RO has assigned a 20 percent evaluation for the veteran's service-connected shell fragment wound, right wrist, with right radial neuropathy, postoperative neurolysis under Diagnostic Code 8514. See 38 C.F.R. § 4.124a (1999). VA x-rays taken in December 1997 showed the presence of arthritis involving the right wrist. The Board finds that this report raises the issue of service connection for traumatic arthritis of the right wrist on a secondary basis. The Board further finds that this issue is intertwined with the issue of an increased rating for the residuals of the shell fragment wound to the right wrist and must be adjudicated by the RO. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The evidence shows that the initial VA examination following service in April 1973 indicated the neurological damage was confined to the radial nerve. The December 1997 VA examination revealed a diagnosis medial and ulnar neuropathy of the right wrist and hand, secondary to 1968 injuries. This examination showed some functional impairment involving the right hand. The evaluation did not include a description of the grip strength of the right hand. The December 1997 VA examination of the feet showed that there were plantar calluses involving the feet. However, a description of the site of the excision of the heloma was not included. In view of these facts, it is the Board's opinion that a contemporaneous medical examination is appropriate. Accordingly, the case is REMANDED for the following: 1. The RO should furnish the veteran the appropriate release of information forms in order to obtain all VA and private medical records pertaining to recent treatment for the residuals of the shell fragment wound disability of the right wrist and the residuals of the excision of the heloma, right foot. The RO should then obtain all records which are not on file. The RO should inform the veteran of the provisions set forth at 38 C.F.R. § 3.655(b) regarding failure to report for scheduled VA examinations. The RO should notify the veteran that he may submit additional evidence and arguments in support of his claims. 2. A VA examination should be conducted by a neurologist in order to determine the nature and severity of the residuals of the shell fragment wound to the right wrist. All testing, including X-rays, deemed necessary should be performed. The claims folder and a copy of this Remand are to be made available to the examiner in conjunction with the examination. The examiner is requested to indicate in the report that the claims folder was reviewed. The affected joints should be examined for impairment in the range of motion. The examiner should also include the normal ranges of motion of any involved joint. The examiner should also provide an opinion as to the degree of any functional loss that is likely to result from a flare-up of symptoms or on extended use. It is requested that the examiner identify all Muscle Groups involved. In addition, the neurologist is requested, if possible, to distinguish between the symptomatology of the veteran's service-connected right wrist shell fragment wound residuals as opposed to the nonservice connected right thumb disorder. The examiner is requested to render an opinion as to whether the injury to each involved nerve results in complete paralysis, or incomplete paralysis which is mild, moderate or severe? If arthritis of the right wrist is diagnosed, it is requested that the examiner render an opinion as to whether it is as likely as not the shell fragment wound to the right wrist caused or aggravates the arthritis? Allen v. Brown, 7 Vet. App. 493 (1995). The rationale for any opinion expressed should be included in the examination report. 3. A VA examination should be conducted by a podiatrist in order to determine the nature and severity of the residuals of the excision of the heloma, right foot. All testing deemed necessary should be performed. The claims folder and a copy of this Remand are to be made available to the examiner in conjunction with the examination. The examiner is requested to provide a complete description of the excision site on the right foot, to include whether is it tender and painful and whether it results in any functional impairment particularly on extended use. 4. Thereafter, the RO should adjudicate the issue of service connection for arthritis of the right wrist on a secondary basis. If the benefit sought is not granted, the veteran should be notified of that decision and of his appellate rights. 5. After undertaking any additional development deemed appropriate by the RO, the RO should re-adjudicate the issues in appellate status, to include consideration of 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999). See DeLuca v. Brown, 8 Vet. App. 202 (1995). The RO is also requested to consider whether separate ratings are warranted for any impairment of the right wrist and each involved nerve. 38 C.F.R. § 4.14 (1999). If the benefits sought on appeal are not granted, the RO should issue the veteran and his representative a Supplemental Statement of the Case, and an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. ROBERT P. REGAN Member, Board of Veterans' Appeals