Citation Nr: 0007526 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 95-17 995 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for residuals of a right thumb injury. 2. What evaluation is warranted for a low back disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran served on active duty from August 1989 to June 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDINGS OF FACT 1. On the issue of what evaluation is warranted for a low back disability, all relevant evidence necessary for an equitable resolution of the veteran's appeal has been obtained by the RO. 2. The claim of entitlement to service connection for residuals of a right thumb injury is not plausible. 3. The veteran's low back disability is manifested by complaints of pain. Flexion is to 90 degrees; extension to 40 degrees; and lateral bending is to 30 degrees, bilaterally. The veteran's manifestations are no more than slight. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for residuals of a right thumb injury is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The schedular criteria for a rating beyond 10 percent for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.10, 4.40, 4.41, 4.45, 4.71a, Diagnostic Codes 5292, 5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. A Right Thumb Disability Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record, regardless of its date, shows that the veteran had a chronic disorder in service or during an applicable presumptive period, and that the veteran still has such a disorder. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-95 (1997). Such evidence must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). If the disorder is not chronic, it may still be service connected if the disorder is observed in service or an applicable presumptive period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present disorder to that symptomatology. Id. at 496-97. Again, whether medical evidence or lay evidence is sufficient to relate the current disorder to the in-service symptomatology depends on the nature of the disorder in question. Id. Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establish that the disorder was incurred in-service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). However, a person claiming VA benefits must meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well grounded is plausible, meritorious on its own, or capable of substantiation. Murphy, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). For purposes of determining whether a claim is well grounded, the Board presumes the truthfulness of the supporting evidence. Arms v. West, 12 Vet. App. 188, 193 (1999); Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well grounded, there must be competent evidence of a 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). Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza v. Brown, 7 Vet. App. 498, 504 (1995). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). VA cannot undertake to assist a veteran in developing facts pertinent to his claim until and unless the veteran submits a well grounded claim. Morton v. West, 12 Vet. App. 477, 486 (1999). The record shows that the veteran injured his right thumb in service in 1994. He reported hyperextending his thumb during a football game. X-rays of the right thumb were negative. Tendonitis of the right thumb was the impression. At separation in May 1994, no right thumb problems were noted. Upon examination by VA in August 1994, the veteran reported that he was unable to completely flex his right thumb. On examination, it was noted that there was no right thumb deformity, discoloration, swelling or bony abnormality. The thumb extended completely, and on flexion the thumb flexed to the median transverse fold of the palm of the right hand within 2 cm. of the palm. There was normal dexterity and normal motor strength. X-rays of the right thumb were negative. The diagnosis was, history of hyperextension injury to the right thumb; examination is entirely normal. Although the veteran was treated in service for a right thumb injury, the VA examiner in August 1994 was unable to find and diagnose any residuals of the injury. The subsequent VA examination reports are negative for findings or diagnosis related to the right thumb. Thus, there is no medical evidence of a current disability. A claim is not well grounded if there is no present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board emphasizes that there is no evidence of record to suggest that the veteran is a trained medical professional. Therefore, although he is competent to relate and describe symptoms, he is not competent to offer an opinion on matters that require medical knowledge, such as determinations of disability or etiology. Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. Under these circumstances, the Board finds that the veteran has not submitted a well grounded claim. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Epps, 126 F.3d at 1468. Therefore, the duty to assist is not triggered and VA has no obligation to further develop the veteran's claim. Epps, 126 F.3d at 1469; Morton, 12 Vet. App. at 486; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). If the veteran wishes to complete his application for service connection for the disorder discussed above, he should submit competent medical evidence that shows a current diagnosis, as well as a relationship between the disorder and the veteran's active duty service. 38 U.S.C.A. § 5103(a); Robinette, 8 Vet. App. at 77-80. II. A Low Back Disability As a preliminary matter, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the Board finds that he has presented a claim that is plausible and capable of substantiation. The Board is also satisfied that all relevant evidence regarding the claim has been obtained, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a) since all relevant development has been conducted. In accordance with 38 C.F.R. § § 4.1, 4.2 (1999) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the veteran's service medical records and all other evidence of record pertaining to the history of the service- connected disability at issue here. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1999). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § § 4.1, 4.10 (1999). Separate diagnostic codes identify the various disabilities. If there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). The United States Court of Appeals for Veterans Claims (hereinafter, "the Court") has held that, in a claim of disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, all of the evidence following the grant of service connection (not just the evidence showing the present level of disability) must be considered in evaluating the veteran's claim. Service connection was granted for a low back disability in September 1994, and a 10 percent evaluation was assigned under Diagnostic Code 5295 of VA's Rating Schedule. This was based on service medical records which showed treatment in service for back complaints. On examination by VA in August 1994, the veteran flexed to 90 degrees; extension was to 30 degrees; and left and right rotation and left and right flexion were to 30 degrees. It was noted that movement was with pain. X-rays of the lumbar spine showed scoliosis with convexity to the left. VA outpatient treatment records show that the veteran was treated in June 1995, for low back pain; the finding was mechanical low back pain. Also in June 1995, it was noted that the veteran was attending aquatic therapy for his low back disability. VA X-rays taken in October 1996 showed no evidence of arthritis and the impression was, normal lumbar spine. On VA examination in January 1997, the examiner noted that there were no muscle spasms, and no neurologic involvement. Flexion was to 90 degrees; and extension, bending and rotation were to 25 degrees. The diagnosis was, chronic dorsal and lumbosacral strain. In October 1997 the same VA examiner submitted an addendum that passive range of motion of the lumbar spine could not be given. It was stated that the veteran had flare-ups and the motion may be limited but that this could not be determined unless a flare-up were under way. The examiner reported that flare-ups would occur with activity or prolonged sitting or standing might cause an exacerbation or increase in back pain. It was stated that X- rays were reviewed and were normal. The examiner noted that congenital spina bifida was noted at S1. The veteran was examined by VA in December 1998. The examiner noted that the veteran was well developed with a normal gait. Palpitation of the spine showed mild tenderness at the thoracolumbar junction midline. There was 5/5 symmetric strength throughout all muscle groups, and the examiner noted that there was no muscle spasm. The examiner stated that the veteran's low back condition did not appear to impair his ability to carry out basic activities of daily living. It was stated that the veteran appeared to have at best a mild degree of arthritis. It was opined that the veteran had a component of mild lumbar strain and nothing more. On VA examination in March 1999, the veteran reported back pain mostly with prolonged sitting and standing and occasionally at night. It was noted that he could walk around the mall without any problem, and was unable to say how far he could walk before having pain. It was noted that he currently worked in a machine shop and was unable to do any lifting or bending due to his back symptoms. Flexion was to 90 degrees; extension to 40 degrees; and lateral bending was to 30 degrees, bilaterally. There was no paraspinal tenderness. The examiner's impression was that there were no objective findings or abnormal findings, in regards to the veteran's back. It was noted that he had full range of motion and was neurologically intact. It was stated that his symptoms were consistent with mechanical back pain. It was noted that X-rays showed some early degeneration at the L5-S1 facets and that there were minimal osteophytes. The examiner stated that the veteran's symptoms related to mechanical back pain, which would require aggressive physical therapy and strengthening of the abdominal and back muscles. Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. 38 C.F.R. Part 4, Code 5003 (1999). Diagnostic Code 5292 provides for the evaluation of limitation of motion of the lumbar spine. When the limitation of motion of the lumbar spine is slight, a 10 percent rating is provided. When the limitation of motion is moderate, a 20 percent rating is provided. When the limitation of motion is severe, a rating of 40 percent is warranted. 38 C.F.R. Part 4, Code 5292 (1999). Under Diagnostic Code 5295, which provides for the evaluation of lumbosacral strain, with characteristic pain on motion, a rating of 10 percent is provided. With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in a standing position, a rating of 20 percent is provided. When severe with listing of the whole spine to opposite side, positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of the joint space, or some of the above with abnormal mobility on forced motion, a rating of 40 percent is provided. 38 C.F.R. Part 4, Code 5295 (1999). Diagnostic Code 5293 provides for evaluation of intervertebral disc syndrome. Intervertebral disc syndrome is assigned a noncompensable rating when it postoperative, cured. A 10 percent evaluation is assigned when it is mild. Moderate symptoms with recurring attacks of pain are assigned a 20 percent evaluation. Severe symptoms, with recurring attacks and intermittent relief are assigned a 40 percent evaluation. Pronounced symptoms, that are persistent and compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief are assigned a 60 percent evaluation. The maximum evaluation available under Diagnostic Code 5293 is 60 percent. 38 C.F.R. Part 4, Code 5293 (1999). In considering the veteran's claim for a rating for a low back disability, in excess of 10 percent, the Board is of the opinion, in light of the reasoning advanced hereinbelow, that the 10 percent rating which has remained in effect for such service-connected disability since service connection was granted, was fully appropriate. In this regard, the Board observes, the veteran exhibited on the 1994 VA examination, and until most recently in 1999, range of motion findings representative of no more than slight limitation of motion. Most significant, those examination reports showed no postural abnormality, fixed deformity, radiating pain, abnormal reflexes, muscle atrophy or loss of sensation. In addition, there was no evidence of any muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in the standing position. Given the foregoing observations, then, overall disablement involving the veteran's low back, for the duration at issue in this appeal, was clearly not more than slight. Therefore, an evaluation for, in excess of 10 percent for such disability was not in order pursuant to either Diagnostic Code 5292 or 5295. In reaching the foregoing determination, the Board has considered the provisions of 38 C.F.R. §§ 4.40 and 4.45, as pertinent to factors, traceable to service-connected low back disability, including general functional loss, weakened movement and excess fatigability. The Board has also been attentive for indication of loss of functional ability, within the purview of 38 C.F.R. § 4.40, specifically traceable to pain on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the Board finds it noteworthy that, on the occasion of his most recent VA examinations, the veteran had a normal gait, was well developed, and was reported to be able to walk around the mall without difficulty. It was stated in December 1998 that the veteran's back disability did not appear to impair his ability to carry out basic activities of daily living. In addition, there was no evidence, as noted above, of any postural or fixed deformity of the lumbar spine. While he complained of pain there was no objective finding of tenderness. The foregoing considerations, in the Board's view, support a finding that the veteran's disability is adequately compensated at the 10 percent evaluation in effect in the cited time frame, and that there is not sufficient functional impairment, relative to service-connected disablement involving the low back, as to warrant the assignment of a higher disability rating predicated on either 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45 and Part 4, Diagnostic Codes 5292 and 5295. In this case, the Board finds that the preponderance of the evidence is against a disability rating greater than 10 percent for a low back disability. The veteran complains of low back pain and limitation of motion due to pain. However, none of the multiple VA examinations show pathology to support his complaints. Johnston v. Brown, 10 Vet. App. 85 (1997). That is, there is no VA evidence in any of the examinations of muscle spasm, loss of strength, muscle changes, or other objective indication of physical pathology. Loss of motion of the lumbar spine has consistently been no more than slight. Thus, an increased evaluation under Diagnostic Codes 5295 or 5292 would not be warranted. In addition, since there is no neurologic involvement or ankylosis, Diagnostic Codes 5293 and 5289 would not be for consideration. Finally, the Board finds no evidence of exceptional or unusual circumstances to warrant an extra-schedular evaluation under 38 C.F.R. § 3.321(b)(1). There is no showing that the veteran's low back disability substantially interferes with his employment or that he has experienced frequent hospitalizations due to his low back. Accordingly, the Board finds that the preponderance of the evidence is against entitlement to a disability rating greater than 10 percent for lumbosacral strain. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.3, 4.7, 4.71a, Code 5295. ORDER Service connection for residuals of a right thumb injury is denied. Entitlement to a disability rating greater than 10 percent for a low back disability is denied. F. JUDGE FLOWERS Member, Board of Veterans' Appeals