Citation Nr: 0003989 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 91-48 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES Entitlement to service connection for arthritis of both shoulders. Entitlement to service connection for epicondylitis, left elbow. Entitlement to an increased evaluation for arthritis, lumbar spine, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M.G. Mazzucchelli, Counsel INTRODUCTION The veteran served on active duty from July 1959 to July 1967, and from November 1967 to April 1980. This appeal arises from a decision dated in March 1990 by the St. Petersburg, Florida, Department of Veterans Affairs Regional Office (RO). During the pendency of this appeal, the appellant relocated his residence to Athens, Alabama, and the Montgomery, Alabama RO assumed jurisdiction over the case. In November 1992 and November 1995, the Board of Veterans' Appeals (the Board) remanded the case for additional development. At the time of the previous remands, the issues on appeal were: entitlement to service connection for arthritis of both shoulders and elbows; whether new and material evidence had been submitted to reopen a claim for service connection for cervical spondylosis; and entitlement to an evaluation in excess of 10 percent for arthritis of the lumbar spine. Subsequent to the most recent remand, a February 1998 rating decision, in part, granted service connection for epicondylitis of the right elbow, and granted service connection for chronic cervical strain. The veteran has not disagreed with the evaluations assigned those service connected disabilities. Accordingly, the issues currently before the Board are those listed on the first page of this document. The Board also notes that the veteran raised additional issues on documents filed in July 1997 and November 1998. Those issues have not yet been adjudicated by the RO and are therefore not properly before the Board at this time. FINDINGS OF FACT 1. There was no showing of a left elbow or bilateral shoulder disorder during service; there is no objective (X- ray) evidence of record of arthritis of the shoulders; and there is no competent medical evidence of a nexus between the current left epicondylitis, first demonstrated in 1981, and any incident of service. 2. The veteran has not met the initial burden of presenting evidence to justify a belief by a fair and impartial individual that his claims of service connection for arthritis of the shoulders and epicondylitis of the left elbow are plausible. 3. VA has no statutory duty to assist a veteran in the development of facts pertinent to a claim that is shown to be not well grounded. 4. The veteran's service connected arthritis of the lumbar spine is not manifested by a moderate degree of limitation of lumbar spine motion; there is no evidence of weakness, atrophy, fatigability, neurological deficits or muscle spasm. CONCLUSIONS OF LAW 1. The veteran has not submitted evidence of a well grounded claim of service connection for arthritis of both shoulders or epicondylitis of the left elbow. 38 U.S.C.A. § 5107 (West 1991). 2. The criteria for an evaluation in excess of 10 percent for arthritis of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Codes 5003, 5292, 5293, 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Claims Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 1991). 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). Service connection for arthritis may be granted if the disability is manifested to a degree of 10 percent or more within one year following the date of final separation from service. 38 U.S.C.A. § 1112 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). The threshold question to be answered is whether the veteran has presented evidence of a well-grounded claim, that is, one which is plausible. If he has not presented a well-grounded claim, his appeal must fail and there is no duty to assist him further in the development of his claim because such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991). A well grounded claim has been defined as a "plausible claim, one that is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). "Although the claim need not be conclusive, the statute [§ 5107] provides that [the claim] must be accompanied by evidence" to be considered well-grounded. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In order for a claim for service connection to be well grounded, there must be competent evidence of current disability (a medical diagnosis), of incurrence or aggravation of a disease or injury in service (lay or medical evidence), and of a nexus between the in-service injury or disease and the current disability (medical evidence). Caluza v. Brown, 7 Vet. App. 498 (1995). Alternatively, the third Caluza element can be satisfied under 38 CFR 3.303(b) (1999) by evidence of continuity of symptomatology and medical or, in certain circumstances, lay evidence of a nexus between the present disability and the symptomatology. See Savage v. Gober, 10 Vet. App. 488, 495 (1997). After reviewing the evidentiary record concerning the issue of service connection for arthritis of the shoulders and epicondylitis of the left elbow, the Board concludes that the veteran's claims for service connection for those conditions are not well grounded. The service medical records show no treatment for a left elbow or shoulder disability. On service separation examination in January 1980, the appellant reported complaints of swollen and painful joints that were attributed to arthritis of the neck which was being treated with Ascripton. The examiner also noted arthritis and joint deformity which apparently referred to the cervical spondylolysis diagnosed in 1976. However, on physical examination, no orthopedic abnormalities were identified. A VA examination in November 1981 noted chronic bilateral tennis elbow. In March 1990, probable arthritis of the shoulders was noted; however, X-rays of the shoulders and elbows showed no significant bone or joint abnormality. In March and April 1990, the veteran was treated for epicondylitis, left elbow. In May 1993, a diagnosis of generalized arthritis, type unestablished, was noted. In August 1993, a diagnosis of minimal degenerative joint disease was reported. Diagnoses of no radiographic evidence of arthritis with minimal muscle tenderness at the sites of the appellant's complaints and right epicondylitis were noted in March 1994 and, in March 1995, the VA examiner's impression was no inflammatory systemic arthritis. A VA examination was conducted in September 1997. The left elbow was noted to be currently asymptomatic, but there was significant point tenderness to palpation directly over the later epicondyle. There was no evidence of redness, heat, swelling or deformity of the shoulders, and no tenderness to palpation. There was no evidence of atrophy of the shoulders, and strength was noted as 5/5. There was slight acromioclavicular crepitation on passive range of motion testing of the shoulders. The examiner stated that examination of the shoulders was essentially unremarkable. He diagnosed lateral epicondylitis of both elbows which he thought to be compatible with previous diagnosis of tendinitis of the elbows while in service. The most recent VA examination was conducted in June 1998. The examiner noted arthritis of the shoulders, and epicondylitis of the left elbow. However, no X-rays were taken and the examiner had not reviewed any prior X-rays at the time the examination report was prepared. The available objective medical evidence shows no treatment for a left elbow disorder or shoulder disorder during the veteran's periods of active duty. There is no objective evidence of arthritis of the shoulders (i.e., confirmed by X- rays) either during service or currently. Epicondylitis of the left elbow is demonstrated currently; however, it was first shown in November 1981, more than one year after final separation from service. The September 1997 VA examiner's statement relating bilateral epicondylitis to tendinitis of the elbows shown in service is in error, since no left elbow pathology was noted during service. (Complaints of right elbow pain resulted in a diagnosis of tennis elbow in May 1977; however, there were no complaints or findings referable to the left elbow at any time during service). That inaccurate physician's statement cannot serve to well-ground the veteran's claim. The veteran's lay statements to the effect that his claimed disorders began during service are not supported by objective medical evidence and are not competent evidence to support a finding on a medical question requiring special experience or special knowledge. His own statements as to medical diagnoses are not competent to render his claim well- grounded. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). In the absence of objective medical evidence to support the veteran's contentions, his claims are not well grounded. The medical evidence in this case does not provide a basis upon which to conclude that the veteran has arthritis of the shoulders or epicondylitis or the left elbow that originated during or resulted from any incident of active service. Based upon the foregoing, the Board concludes that he has failed to meet his initial burden of presenting evidence that his claims for service connection for those disabilities are plausible or otherwise well-grounded. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992). Under these circumstances, the claims are denied. Edenfield v. Brown, 8 Vet. App. 384 (1995) (en banc). Where a claim is not well grounded, VA does not have a statutory duty to assist a claimant in developing facts pertinent to the claim, but VA may be obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed to complete his application. This obligation depends on the particular facts of the case and the extent to which the Secretary has advised the claimant of the evidence necessary to be submitted with a VA benefits claim. Robinette v. Brown, 8 Vet. App. 69, 78 (1995). Here, unlike the situation in Robinette, the veteran has not put the VA on notice of the existence of any specific, particular piece of evidence that, if submitted, could make his claims well grounded. See also Epps v. Brown, 9 Vet. App. 341 (1996). Accordingly, the Board concludes that VA did not fail to meet its obligations under 38 U.S.C.A. § 5103(a) (West 1991). Increased Rating- Lumbar Spine The veteran's claim for an increased evaluation is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. All relevant facts have been properly developed and no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a) (West 1991). Service connection for degenerative changes, lumbar spine, was granted in January 1982, and a noncompensable evaluation was assigned. A January 1991 rating decision increased the evaluation to 10 percent for arthritis of the lumbar spine, from January 1990. The veteran contends that he is entitled to an increased evaluation. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.1, 4.10, 4.40, 4.71(a) and Part 4 (1999). Separate diagnostic codes identify the various disabilities. Functional loss of use as the result of a disability of the musculoskeletal system may be due to the absence of bone, muscles or joint or may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40 (1999). Both limitation of motion and pain are necessarily recorded as constituents of a disability. 38 C.F.R. §§ 4.40, 4.45, 4.55, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). Degenerative arthritis is evaluated on the basis of limitation of motion for the specific joint involved. 38 C.F.R. § 4.71a, Code 5003 (1999). When limitation of motion in the lumbar spine is shown to be severe, a 40 percent evaluation is assigned. If limitation of motion in the lumbar spine is moderate, a 20 percent evaluation is assigned. For slight limitation of motion in the lumbar spine, a 10 percent evaluation is assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1999). A VA examination was conducted in June 1998. The veteran reported being bothered with prolonged sitting, particularly on a hard surface. There were no particular problems with bending or lifting. The veteran reported no pain radiating into the legs. On examination, the veteran's gait was unremarkable. The veteran was able to stand erect, and no spasm or tenderness was seen. Range of lumbar spine motion was: flexion to 70 degrees; extension to 35 degrees; right and left lateral bending to 35 degrees; and right and left lateral rotation to 35 degrees bilaterally. The examiner noted mild pain on the extremes of each motion, with the exception of right lateral bending, where it was not shown. Sitting straight leg raising test was mildly positive bilaterally. The veteran was able to heel and toe walk, and to squat and arise again. Strength in lower extremities was 5/5. Reflexes were 1+ at the knees with distraction. Ankle jerks were 2+ bilaterally without distraction. Sensation testing was intact in the lower extremities. X-rays showed spondylolysis and minor spondylolisthesis at L-5. There were minor marginal osteophytes on the other lumbar vertebral bodies. The examiner noted that there was no weakness noted, but that pain could limit functional disability during flare- ups although it was not feasible to express that in terms of any additional limitation of motion as it could not be determined with any degree of medical certainty. The VA examination findings do not demonstrate the moderate degree of limitation of lumbar spine motion which would entitle the veteran to a higher evaluation for his service connected arthritis of the lumbar spine. Objective signs such as weakness, atrophy, fatigability or muscle spasm, which is often indicative of impaired function, was not shown. The examiner's speculative opinion regarding possible, unquantified, functional impairment, in the absence of such objective evidence, is not a sufficient basis for additional disability. 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999). Additionally, a higher evaluation is not appropriate under codes 5293 or 5295 since the evidence does not demonstrate moderate intervertebral disc syndrome (no neurological deficits were shown) or muscle spasm on extreme forward bending and loss of lateral spine motion. 38 C.F.R. Part 4, Diagnostic Codes 5293, 5295 (1999). The evidence for and against the claim is not in relative equipoise; therefore no reasonable doubt issue is raised. 38 U.S.C.A. § 5107(b)(West 1991); 38 C.F.R. § 3.102 (1999). ORDER Service connection for arthritis of both shoulders is denied. Service connection for epicondylitis, left elbow, is denied. An evaluation in excess of 10 percent for arthritis, lumbar spine, is denied. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals