BVA9505764 DOCKET NO. 90-44 438 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for hearing loss, tinnitus, and hypertension. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for neurofibromatosis with anemia. 4. Entitlement to service connection for hypertension. 5. Entitlement to an increased rating for bilateral knee disability, currently assigned a 10 percent disability evaluation. 6. Entitlement to an increased (compensable) disability rating for residuals of fracture of the right calcaneus. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The appellant and the appellant's mother ATTORNEY FOR THE BOARD P. H. Mathis, Counsel INTRODUCTION The veteran had active service from September 1985 to May 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded to the RO for further action in March 1991, October 1992, and November 1993. When the issue of an increased (compensable) rating for bilateral patellofemoral syndrome was before the Board in October 1992, the Board granted service connection for degenerative joint disease of the knees. The issue of entitlement to an increased rating for knee disability was remanded to the RO for further adjudication in light of the grant of service connection for the more extensive knee disability. By a decision in January 1993, the RO termed the service-connected knee disorder: Bilateral knee patellofemoral pain with knee osteoarthritis, and assigned a 10 percent disability rating. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran incurred hearing loss and tinnitus as the result of service flight line activities; that a grant of service connection for neurofibromatosis is warranted because it was aggravated during service; that there is medical documentation of hypertension and heart palpitations in the service medical records, which were related to stress and neurofibromatosis; and that the veteran has pain and discomfort as residuals of the right foot fracture, and from bilateral knee disability. 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 the preponderance of the evidence is against the veteran's claim of entitlement to service connection for neurofibromatosis with anemia, an increased rating for patellofemoral pain with knee osteoarthritis, and an increased (compensable) rating for residuals of fracture of the right calcaneus. The Board finds that the veteran's claims of entitlement to service connection for hearing loss, tinnitus, and hypertension are not well grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The claims for service connection for hearing loss, tinnitus, and hypertension are not plausible. 3. Neurofibromatosis with anemia clearly and unmistakably existed prior to service and did not increase in severity during service. 4. Full range of knee motion is shown bilaterally, and no functional impairment is demonstrated. 5. The fracture of the right calcaneus healed without residuals or functional impairment. 6. No unusual or exceptional disability factors have been presented. CONCLUSIONS OF LAW 1. The claims of entitlement to service connection for hearing loss, tinnitus, and hypertension are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. Neurofibromatosis with anemia was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1111, 1131, 1137, 1153, 1154, 5107 (West 1991); 38 C.F.R. § 3.306 (1993). 3. The criteria for an evaluation higher than 10 percent for bilateral patellofemoral pain with knee osteoarthritis have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.71, Diagnostic Code 5010 (1993). 4. The criteria for a compensable evaluation for residuals of fracture of the right calcaneus have not been met. 38 U.S.C.A. § 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.31, Diagnostic Code 5284 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Inasmuch as the hearing testimony applies to all the issues before the Board and is of significant importance, it is being discussed first. During a hearing at the RO in April 1990, the veteran and his mother testified about the stress he endured during service when he was informed that he had neurofibromatosis. The veteran testified about noise exposure on flight lines and its effect on his hearing, and the impact that his wife's miscarriage had on him. He asserted that the stress and trauma of service affected the development of neurofibromatosis and resulted in physical and mental disability, which his mother attested continued to the present, and he discussed the extreme pain and impairment he experienced as the result of his service-connected lower extremity disabilities. The testimony is accorded significant weight in the decision process, but for the reasons discussed herein it is not considered sufficient to overcome the objective evidence of record. The Board has also considered a statement, dated in September 1989, presented at the hearing, from a former employer reflecting that the veteran was then physically and mentally unable to perform fabrication work, but subsequent evidence reflects that the veteran is now employed full time. I. Service connection for hearing loss, tinnitus, and hypertension The applicable law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1131 (West 1991). For the reasons set forth below, the Board finds that the veteran has not met his burden of submitting evidence to support a belief that his claims of entitlement to service connection for hearing loss, tinnitus, and hypertension are well grounded. 38 U.S.C.A. § 5107(a); see Grottveit v. Brown, 5 Vet.App. 91 (1993); Tirpak v. Derwinski, 2 Vet.App. 609 (1992); Murphy v. Derwinski, 1 Vet.App. 78 (1990). On examination in November 1988, high frequency hearing loss was reported in the right ear at 3000 hertz. Reportedly, hearing loss was first noticed in the left ear in 1987, due to working on the flight line. It was reported that the veteran wore hearing protection. An H-1 profile was initiated. However, the veteran's hearing was normal, bilaterally, based on other audiometric testing during service. More significantly, audiometric examination by the VA in August 1989 revealed that the veteran's hearing was within normal limits, bilaterally. In fact, there is no post service evidence reflecting that the veteran has any hearing loss. In order for service connection to be granted, residual disability must be shown. 38 U.S.C.A. § 1131. Here, there is no objective evidence demonstrating that the veteran has chronic hearing loss which may be attributed to service. There was no complaint of tinnitus during service. The report of a VA examination in June 1989 reflects that the veteran complained of a small amount of ringing in both ears, which was also termed periodic. He asserted that noise from engines during service was the cause, but there is no medical evidence to show that there is a causal relationship. Although the veteran has expressed his opinion that such a relationship exists, he is not qualified, as a lay person, to furnish medical opinions or diagnoses. Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Accordingly, without the requisite competent medical evidence establishing that the veteran's claim is plausible, he has not met his burden of submitting evidence that his claim of entitlement to service connection for tinnitus is well grounded. Grottveit at 92; Tirpak at 611. In addition to the basic law regarding service connection, set forth above, where a veteran served ninety (90) days or more during peacetime service after December 1946, and hypertension becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). Although the veteran underwent extensive cardiac examinations during service and subsequent thereto, there has been no diagnosis of hypertension. Numerous blood pressure readings are of record, both during and after service, and none demonstrate the existence of hypertension. Again, although the veteran has expressed his opinion that he has hypertension related to service, he is not qualified, as a lay person, to furnish medical opinions or diagnoses. Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Also, without the requisite competent medical evidence establishing that the veteran's claim is plausible, he has not met his burden of submitting evidence that his claim of entitlement to service connection for hypertension is well grounded. Grottveit at 92; Tirpak at 611. In the absence of medical evidence reflecting the existence of hypertension, including the absence of evidence supporting the argument that it exists and is related to neurofibromatosis, the Board concludes that the claim is not well grounded. II. Service connection for neurofibromatosis with anemia A veteran who served during peacetime service after December 31, 1946, is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability manifested in service existed before service will rebut the presumption. 38 U.S.C.A. §§ 1111, 1137. A preexisting disability may be aggravated during service, but aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. §§ 1153, 1154 (West 1991); 38 C.F.R. § 3.306 (a) (b) (1993). The veteran's claim is deemed well grounded. 38 U.S.C.A. § 5107(a). The primary reasons for the decision denying service connection for neurofibromatosis with anemia are the history reported by the veteran during service of cafe au lait macules dating back to birth, the report of a Physical Evaluation Board, dated in February 1989, which reflects that there was a diagnosis of neurofibromatosis, with anemia secondary to the diagnosis, including the notation that the disability existed prior to service without service aggravation, and the fact that there were essentially no residuals of neurofibromatosis shown on physical examination by the VA in 1990, and the absence of objective evidence reflecting aggravation of the disease during or after service. During service, the Physical Evaluation Board recommended that the veteran be separated from service because the diagnosis of inherited neurofibromatosis posed decided medical risks in the long term. The conclusion by clinicians during service that the neurofibromatosis preexisted service is considered dispositive of the issue, especially in the absence of medical support for a different conclusion. It is the judgment of the Board that the finding during service that neurofibromatosis with anemia existed prior to service provides clear and unmistakable support for rebutting the presumption of soundness on induction. Accordingly, the disease may not be considered to be of service origin and may not be the basis for a grant of service connection unless it was aggravated therein. A review of the service medical records regarding the question of aggravation reflects that there was an impression of questionable neurofibromatosis in October 1988, when the veteran was referred for a dermatology consultation. There was an impression of neurofibromatosis based on axillary freckling, cafe au lait macules and probable neurofibromas of the left arm and abdomen. There was a diagnosis of neurofibromatosis in November 1988, when a Medical Evaluation Board reported that there were multiple cafe au lait spots, and nontender cysts, over the veteran's abdomen and left arm. At a private center in December 1988, the veteran underwent magnetic resonance imaging (MRI) of the head which was interpreted as being essentially normal. On this basis, it was concluded that there was no evidence of central neurofibromatosis. Also that month, it was recommended that the veteran have minor surgery to remove cafe au lait spots on the left abdomen, and he had a neurofibroma removed from his left forearm. Ameliorative treatment in service may not be the basis for a grant of service connection. The applicable regulation provides that the usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, including postoperative scars, will not be considered service connected unless the disease or injury is otherwise aggravated by service. 38 C.F.R. § 3.306 (b) (1) (1993). When the veteran was evaluated at a neurology clinic by a Medical Evaluation Board in January 1989, there were diagnoses of neurofibromatosis with no indication of involvement of the central nervous system, and anemia, type not specified. A VA outpatient treatment report for January 1990 reflects that the veteran had a history of neurofibromatosis. It was reported that he seemed to be in good health. He had a few neurofibromas which were not really symptomatic and which were not causing any musculoskeletal disability. Examination of the knees revealed full range of movement without any suggestion of internal derangement. There was good range of motion of the spine without pain. The upper limbs were normal. From talking to him, it was apparent that he had wanted to stay in active service. The physician questioned why the veteran was given disability termination of active duty and then later on had reduction of his disability to zero percent. The issue of service retention is not within the Board's jurisdiction. The absence of clinical evidence of disability, however, is deemed crucial regarding the question of whether neurofibromatosis was aggravated during service. The physician's comments are clearly against the claim that neurofibromatosis was aggravated by service. The findings in 1990, evaluated in conjunction with all the other evidence, do not demonstrate an increase in symptomatology over the manifestations of the disease in service or otherwise demonstrate aggravation of neurofibromatosis. Although the veteran has asserted that aggravation of the disease occurred during service, he is not qualified, as a lay person, to furnish medical opinions or diagnoses. Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). A review of the service medical records and all the post service evidence reflects that there is no objective basis even suggesting that neurofibromatosis was aggravated during service. IV. An increased rating for bilateral patellofemoral pain with knee osteoarthritis As a preliminary matter, the Board finds that the veteran's claim for an increased evaluation for knee disability is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); see Proscelle v. Derwinski, 2 Vet.App. 629 (1992) (a claim of entitlement to an increased evaluation of a service-connected disability generally is a well-grounded claim.) When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant evidence has been obtained regarding the veteran's increased rating claim, and that no further assistance to the veteran with respect to this claim is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 (1993) 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 his service-connected knee disability, and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. 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 (1993). 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 (1993). Under the provisions of the Rating Schedule, slight impairment of either knee warrants a 10 percent disability rating. Higher ratings require moderate or severe impairment. 38 C.F.R. Part 4, Code 5257. Traumatic arthritis is rated as degenerative arthritis based on limitation of motion of involved joints. An evaluation of 10 percent is applied for each major joint affected by limitation of motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is X-ray evidence of involvement of two or more major joints. 38 C.F.R. Part 4, Codes 5010, 5003. The evidence does not reflect that limitation of motion is currently shown. The RO has assigned a 10 percent rating for bilateral knee arthritis under Code 5010. A VA special orthopedic examination in November 1991 resulted in impressions of chondromalacia patellae, bilateral. Examination of the knees revealed a full range of movement without any suggestion of internal derangement. It was noted that he could have mild chondromalacia. When the veteran had a VA examination in December 1993, he stated that in 1987, when he was in the service, he first noted pain at the center of his knee and underneath his kneecap on both knees. At the time of the examination, he was employed by a security firm as a licensed, armed security guard. The position involved driving 120 miles per evening and walking and checking residential and commercial sites. He stated that he was capable of arresting and detaining folks as needed. He had been off work for the last four weeks secondary to a Labor and Industry accident involving his hand. He limited his walking to what was necessary to complete his responsibilities. He admitted that he walked approximately 1 to 2 miles per night. He stated that his weight was stable at 200 pounds. He had weighed 230 pounds in the recent past. He stated that he sometimes had episodes where he would lose his balance while squatting. He felt that his range of motion was normal. He provided the information that there was a constant ache in his knees induced with long periods of driving and/or sitting; that he could drive and/or sit for 15 minutes to an hour depending upon the degree to which his knee was aggravated and the weather; that the constant ache which he experienced in his knee was relieved with walking; that he presumed that his strength was normal; and that he had not noted weakness and/or atrophy. Aggravating factors to his knee condition included sitting extensively, standing for prolonged periods; performing assembly line work, and the constant use of foot pedals; for example, use of precision foot pedals as would be needed for fork lift operation. The veteran had a prior occupation as a fork lift driver, but switched to security work secondary to his knee discomfort while operating a fork lift. He stated that walking on concrete exacerbated the pain in his knees; that he had a decreased ability to walk across a construction platform on a 2x4; that the previous August was the last time that his knees became swollen when he was still driving a fork lift truck; and that his knees had not become swollen since he stopped driving a fork lift truck and changed to his current security guard occupation. He had given up sheet metal work secondary to excessive walking required. He stated that climbing did not pose a problem for him. Examination of the knees revealed they were nontender to palpation, and were symmetrical with no detectable effusion. The knees were nontender and without deformity. McMurray's test was negative, bilaterally. The anterior drawer test was negative, bilaterally. The drawer sign was negative, bilaterally. The veteran was able to perform five full squats without difficulty. His motor power was intact in both flexors and extensors proximally and distally in the lower extremities. His thighs measured 22 1/2 inches in circumference. His calves measured 15 1/2 inches in circumference. Each measurement was taken at a distance of 8 inches from the superior aspect of the patella. The Romberg sign was negative. The Trendelenburg sign was negative. Reflexes were intact and symmetrical throughout without clonus or spread. The toes were downgoing, bilaterally. Straight leg raising was negative. His gait was completely normal. He was able to walk forward and backward in tandem on his toes and on his heels, on the inside of his foot and on the outside of his foot without difficulty. The veteran was also able to hop across the room in an unimpeded fashion, both forward and backward on each foot. His knees demonstrated 140 degrees of flexion, bilaterally, and 0 degrees of extension. They would not hyperextend. Also of note, his patella was nontender as it was moved over the knee joint, bilaterally. There was a diagnosis of history of chronic knee pain, without objective findings present on examination today, X-ray results are pending. X-rays of the knees showed normal bone structure and joint relationships. The impression was normal knees. The evidence reflects that the veteran has extremely good function of both knees without evidence of impairment warranting a rating in excess of 10 percent. In light of the service- connected disabilities affecting the knees and right calcaneus, the report of the veteran's hopping ability is extraordinary and clearly against his claims for increased ratings. In conclusion, we note that no unusual or exceptional disability factors warranting extraschedular consideration have been presented. 38 C.F.R. § 3.321(b)(1). V. An increased (compensable) rating for residuals of fracture of the right calcaneus The veteran's claim for an increased evaluation for residuals of fracture of the right calcaneus, or os calcis, is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); see Proscelle v. Derwinski, 2 Vet.App. 629 (1992) (a claim of entitlement to an increased evaluation of a service-connected disability generally is a well-grounded claim.) When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to that claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant evidence has been obtained regarding the veteran's claim, and that no further assistance to the veteran with respect to this claim is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 (1993) 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 his service-connected residuals of fracture of the right calcaneus, and has found nothing in the historical record that would lead to a conclusion that the current evidence of record is not adequate for rating purposes. In addition, it is the judgment of the Board that this case presents no evidentiary considerations that would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. 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 (1993). 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 (1993). Under the provisions of the Rating Schedule, moderate residuals of foot injuries warrant a 10 percent evaluation. A 20 percent evaluation requires moderately severe residuals. 38 C.F.R. Part 4, Code 5284. Where the minimum schedular evaluation requires residuals and the schedule does not provide a noncompensable evaluation, a noncompensable evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31 (1993). In addition, the Board notes that no unusual or exceptional disability factors warranting extraschedular consideration have been presented. 38 C.F.R. § 3.321(b)(1). The service medical records reflect that the veteran had a chip fracture of the distal calcaneus on the right. When he was examined by the VA in June 1989, he reported that his foot swelled once in a while. Running was limited to one block. On examination, there was no tenderness to compression of the right os calcis. An X-ray of the area was negative. There was no pertinent diagnosis. When the veteran had a special orthopedic examination by the VA in November 1991, he walked with a normal gait and did not limp. He was able to walk on his heels, and there was no swelling about the right heel. No tenderness was shown on examination. There was an impression of fractured right calcaneus, by history, healed. During VA examination in December 1993, the veteran's gait was completely normal. He was able to walk forwards and backwards on his heels without difficulty. He was also able to hop across the room in an unimpeded fashion, both forwards and backwards on each foot. It is the judgment of the Board that there are clearly no residuals of fracture of the right calcaneus which would warrant a compensable rating. ORDER Evidence of a well-grounded claim not having been submitted, the claim for service connection for hearing loss and tinnitus is dismissed. Service connection for neurofibromatosis with anemia and hypertension is denied. An increased rating for bilateral patellofemoral pain with knee osteoarthritis is denied. An increased (compensable) rating for residuals of fracture of the right calcaneus is denied. SHANE A. DURKIN Member, Board of Veterans' Appeals 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.