BVA9505873 DOCKET NO. 93-04 452 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for residuals of an injury to the left elbow. 2. Entitlement to service connection for hearing loss of the left ear. 3. Entitlement to an increased rating for degenerative joint disease of the thoracolumbar spine, currently evaluated as 10 percent disabling. 4. Entitlement to an increased (compensable) rating for a scar on the left middle finger. 5. Entitlement to an increased (compensable) rating for hearing loss on the right. 6. Entitlement to an increased (compensable) rating for a right knee disability. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran retired after more than 20 years of active service in May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office in Montgomery, Alabama (RO). CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran injured his left elbow and developed hearing loss of the left ear during service. It is asserted that his service-connected disabilities of the thoracolumbar spine, scar on the left middle finger, hearing loss of the right ear and right knee disability, are more disabling than currently evaluated. It is asserted that the veteran has a loss of feeling on the side of his finger around the scar with numbness from that point to the end of the finger. It is also asserted that the veteran should have compensable evaluations for his hearing loss of the right ear and for his right knee disability, with consideration of osteoarthritis of the right knee as shown by service medical records. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that with respect to the issue of service connection for residuals of an injury to the left elbow, the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded, and with respect to the remaining issues on appeal, the preponderance of the evidence is against service connection for hearing loss of the left ear and against increased ratings for degenerative joint disease of the thoracolumbar spine, scar on the left middle finger, hearing loss of the right ear and a right knee disability. FINDINGS OF FACT 1. With respect to all issues except service connection for residuals of an injury to the left elbow, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The claim for service connection for residuals of an injury to the left elbow is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 3. The pure tone thresholds for hearing in the left ear at 500, 1,000, 2,000, 3,000 and 4,000 Hertz are all less than 40 decibels, with the thresholds for at least three of these frequencies less than 26 decibels, and the veteran's speech recognition score is 96 percent. 4. Disability of the thoracolumbar spine is manifested by degenerative joint disease and not more than slight limitation of motion. 5. The scar on the left middle finger is nontender and the finger has full range of motion. 6. The veteran has level I hearing in the right ear and is not completely deaf in the left ear. 7. The veteran's right knee disability is manifested by osteoarthritic changes and slight patellofemoral crepitus on range of motion, but it has full range of motion, no pain or weakness and no evidence of instability. CONCLUSIONS OF LAW 1. With respect to service connection for a left elbow disability, the veteran has not submitted evidence of a well- grounded claim. 38 U.S.C.A. § 5107 (West 1991). 2. Hearing loss disability of the left ear is not demonstrated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.307, 3.309, 3.385 (1993). 3. An evaluation greater than 10 percent for degenerative joint disease of the thoracolumbar spine is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, Part 4, Codes 5003, 5291, 5292 (1993). 4. A compensable evaluation for the veteran's scar on the left middle finger is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, Part 4, Codes 5226, 7805 (1993). 5. The criteria for a compensable evaluation for defective hearing, right ear, are not met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.7, Part 4, Code 6100 (1993). 6. A compensable evaluation for the right knee disability is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.40, Part 4, Code 5257 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Left Elbow The threshold question to be answered with respect to this issue is whether the veteran has presented evidence of a well-grounded claim; that is, a claim 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 that claim because such additional development would be futile. 38 U.S.C.A. § 5107(a). As will be explained below, the Board finds that his claim for service connection for disability of the left elbow is not well grounded. It is contended that service connection for disability of the left elbow should be granted on the basis that the veteran hurt his left elbow when he fell on it during his active service. Service medical records are silent for any complaint, finding or treatment with respect to any disability of the left elbow. The report of a July 1992 VA orthopedic examination states that the veteran reported a history of a contusion to the left elbow secondary to a fall. He indicated that there were no fractures and he was given conservative treatment. X-rays of the left elbow were normal and the impression included history of left elbow contusion, asymptomatic. Since the veteran has failed to submit evidence of a chronic disability of the left elbow during active service, or of any current chronic disability of the left elbow, a claim for service connection for disability of the left elbow is not well grounded. Grivois v. Brown, 6 Vet.App. 136 (1994). Since he has not met the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded, there is no further duty to assist him in the development of that claim. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Since the claim is not well grounded, the Board does not have jurisdiction to adjudicate it and it must, accordingly, be dismissed. Boeck v. Brown, 6 Vet.App. 14 (1993). With respect to the remaining issues on appeal the veteran's claims are "well grounded" within the meaning of 38 U.S.C.A. § 5107. The Board is satisfied that all relevant facts have been properly developed and that no further assistance is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107. II. Hearing Loss on the Left It is contended that the veteran has hearing loss on the left which was incurred during his active service. In Hensley v. Brown, 5 Vet.App. 155 (1993), the United States Court of Veterans Appeals indicated that a veteran may have normal hearing, a hearing loss or a hearing loss disability. It held that if a veteran meets the criteria of 38 C.F.R. § 3.385, he has a hearing loss disability. He need not meet that criteria during his active service, but if that criteria is met subsequent to service, the issue is whether the then manifested hearing loss disability is attributable to service. 38 C.F.R. § 3.303(d) (1993). Service connection for impaired hearing shall not be established when the thresholds for the frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz are all less than 40 decibels, the thresholds for at least three of these frequencies are 26 decibels, (changed from 25 decibels effective December 27, 1994), or less and speech recognition scores using the Maryland CNC test are 94 percent or better. 38 C.F.R. § 3.385. Audiometric testing during service, including the report of a January 1992 audiometry examination, reflects that, with respect to the right ear, the veteran did not meet the above-established criteria for demonstrating entitlement to service connection on the basis of hearing loss disability. The report of an August 1992 VA audio examination indicates, with respect to the left ear, that the veteran's thresholds were all less than 40, with three thresholds being less than 26, and speech recognition in the left ear being 96 percent. The summary indicated that he had normal hearing in the left ear. Therefore, the veteran's hearing in his left ear does not meet the criteria for establishing that he has hearing loss disability of the left ear, and service connection may not be granted. III. Thoracolumbar Spine An August 1983 service medical record states that the veteran reported sudden pain in the low back with radiation into the left leg when he was getting out of a truck. The impression was acute low back pain secondary to strain and muscle spasm. He was hospitalized from late August to early September 1983 secondary to low back pain. The discharge diagnosis was mechanical low back pain. The report of the veteran's April 1992 service separation examination does not identify any disability of the back. The report of a July 1992 VA orthopedic examination states that the veteran reported that he sustained a lifting-type injury while in service. He received conservative treatment and had improved with no further problems. Examination of the back revealed that the veteran could stand erect. There was no evidence of spasm or tenderness. Range of motion was accomplished in forward flexion to 80 degrees and in extension to 30 degrees. The consensus as to the average normal range of motion of the lumbar spine is 95 degrees forward flexion and 35 degrees backward extension. See Physician's Guide for Disability Evaluation Examinations, Section VII, Part 2-23 (1985). X-rays of the back revealed minimal degenerative joint disease of the thoracolumbar region. The impression was history of low back injury, presently asymptomatic. In reaching its decision, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1993). The nature of the original injury has been reviewed and the functional impairment which can be attributed to pain or weakness has been taken into account. 38 C.F.R. § 4.40. Further, the Board finds that in this case the disability picture is not so exceptional or unusual so as to warrant an evaluation on an extraschedular basis. It has not been shown that disability of the thoracolumbar spine has caused marked interference with employment or necessitated frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1) (1993). The criteria for an evaluation greater than 10 percent have not been met or approximated. The veteran has what have been characterized as minimal degenerative joint disease changes of the thoracolumbar spine with not more than slight limitation of motion. This would warrant not more than a 10 percent evaluation under 38 C.F.R. Part 4, Code 5292. A noncompensable evaluation would be warranted for slight limitation of motion of the thoracic spine, but a 10 percent evaluation is warranted for slight limitation of motion of the lumbar spine. See Codes 5291 and 5292. Moderate limitation of motion of the lumbar spine is not reasonably demonstrated. Since a compensable evaluation may be assigned under an appropriate diagnostic code, a 10 percent evaluation under 38 C.F.R. Part 4, Code 5003, is not for assignment. 38 U.S.C.A. § 5107; 38 C.F.R. § 4.7. IV. Left Middle Finger Service medical records reflect that in November 1976 the veteran lacerated the third digit of his left hand. The wound was sutured and he was returned to duty. Remaining service medical records are silent for any complaint, finding or treatment with respect to the left middle finger. The report of a July 1992 VA examination states that the laceration to the tip of the left long finger had healed without sequelae. Examination of the left hand revealed a well-healed 3/4-inch scar over the radial aspect of the distal phalanx of the left long finger. This was nontender to palpation. There was a full range of motion of the fingers. The veteran was able to make a good fist in the hand and could oppose the thumb to the remaining fingertips satisfactorily. The impression was healed laceration of the tip of the left long finger. Again, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. The nature of the original injury to the left middle finger has been considered a functional impairment which may be attributed to pain or weakness and has been taken into account. 38 C.F.R. § 4.40. Neither frequent periods of hospitalization nor marked interference with employment have been shown to exist because of the scar of the left middle finger. Therefore, an evaluation on an extraschedular basis is not warranted. 38 C.F.R. § 3.321(b)(1). The criteria for a compensable evaluation have not met or approximated. The veteran has indicated that he has a loss of feeling on the side of his finger surrounding the scar with numbness but there is no indication that there is any ankylosis, since full range of motion is demonstrated, nor has tenderness or pain been objectively demonstrated or subjectively indicated. Therefore, a compensable evaluation on the basis of functional impairment is not indicated. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.7, Part 4, Codes 5226, 7805. V. Increased Rating Hearing Loss Service medical records indicate that in December 1991 a significant hearing threshold shift with respect to the veteran was noted. The veteran was to be removed from any hazardous noise exposure for five days. Under the current schedular criteria for the evaluation of hearing loss, the determination of the degree of impairment resulting from service-connected defective hearing in the right ear is based on the results of controlled speech discrimination tests together with the average hearing threshold as measured by pure tone audiometry in the frequencies of 1,000, 2,000, 3,000 and 4,000 Hertz. The rating schedule establishes 11 levels of auditory acuity, designated from I for essentially normal hearing to level XI for profound deafness. As service connection is in effect for defective hearing in the right ear only, and total deafness in the left ear is not shown, the hearing in the left ear is considered to be unimpaired for rating purposes. 38 C.F.R. § 4.85, Part 4, Codes 6100 to 6110 (1993). The report of an August 1992 VA audiology examination reflects that, in the right ear, the average pure tone threshold at the designated frequencies was 21 with 96 percent correct speech discrimination ability. This corresponds to level I hearing in the right ear. Hearing in the nonservice-connected left ear, as noted above, is considered to be at level I. Under the applicable schedular criteria, a noncompensable evaluation is the maximum rating for assignment for the degree of impairment demonstrated. VI. Right Knee Service medical records indicate that in March 1989 the veteran was seen with complaints of right knee pain. The impression was hamstring muscle pull. In April 1990 he was again seen with complaints of right knee pain. The assessment included chronic knee pain. The report of a May 1990 service X-ray of the veteran's right knee states that there were moderately advanced osteoarthritic changes of the knee and patellofemoral articulation. The report of his April 1992 service separation examination and medical history indicates that the veteran reported a knee injury secondary to exertion without sequelae. The report of the examination indicates no finding with respect to any abnormality of the right knee. The report of a July 1992 VA examination states that the veteran reported a right knee injury as a result of a twisting during physical training. He indicated that he received conservative treatment and that his right knee was asymptomatic. Physical examination showed that the veteran walked with an unremarkable gait and had range of motion in the right knee from 0 to 145 degrees with slight patellofemoral crepitance noted on range of motion. There was no redness, heat, swelling or tenderness. There was no evidence of instability and the veteran could heal and toe walk and perform a full squat and arise again. The impression included history of right knee injury, presently asymptomatic. X-rays of the right knee were reported as revealing no bone or joint abnormality. The Board has reviewed the record with respect to the onset of the veteran's right knee disability as well as the manifestations of that disability which have been reported clinically, and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. The nature of the original injury has been reviewed and the functional impairment which may be attributed to pain or weakness has been taken into account. 38 C.F.R. § 4.40. Further, the Board finds that in this case the disability picture is not so exceptional or unusual so as to warrant an evaluation on an extraschedular basis. It has not been shown that disability of the right knee has caused marked interference with employment or necessitated frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). The criteria for a compensable evaluation have not been met or approximated under any applicable code. Although the report of July 1992 VA X-rays of the veteran's right knee indicates no abnormality, the report of a May 1990 service X-ray states moderately advanced osteoarthritic changes of the right knee and patellofemoral articulation. However, current examination revealed no loss of range of motion. Full range of motion of the knee is from 0 to 140 degrees. See 38 C.F.R. § 4.71-3 (1993). Therefore, a 10 percent evaluation may not be assigned under the provisions of 38 C.F.R. Part 4, Code 5003. See also Codes 5260 and 5261. Neither is there evidence of instability, subluxation or ankylosis, and a compensable evaluation may not be assigned under any applicable rating criteria. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.7, Part 4, Codes 5256, 5257 (1993). ORDER The issue of service connection for a left elbow disability is dismissed. Service connection for hearing loss of the left ear is denied. An increased rating for degenerative joint disease of the thoracolumbar spine is denied. An increased rating for a scar on the left middle finger is denied. An increased rating for hearing loss of the right ear is denied. An increased rating for disability of the right knee is denied. JEFF MARTIN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.