BVA9500354 DOCKET NO. 93-04 887 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to an increased evaluation for a right knee disability, currently rated as 10 percent disabling. 3. Entitlement to a permanent and total disability evaluation for pension purposes. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD John D. Nachmann, Associate Counsel INTRODUCTION The veteran had active service from April 1972 to January 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of November 1991 by the Department of Veterans Affairs (VA) Cleveland, Ohio, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the RO was incorrect in not granting the benefits sought on appeal. He maintains that service connection for a low back disability is warranted as he injured his back twice during service and has continued to have back problems ever since. The veteran further asserts that an increased evaluation for a right knee disability is warranted as this disorder has increased in severity. Lastly, the veteran avers that a permanent and total disability evaluation is warranted as he is unable to secure substantially gainful employment due to his disabilities. Therefore, he requests favorable determinations by the Board. 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 veteran has not submitted a well-grounded claim of entitlement to service connection for a low back disability. It is further the decision of the Board that the preponderance of the evidence is against the veteran's claims of entitlement to an increased evaluation for a right knee disability and entitlement to a permanent and total disability evaluation for pension purposes. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran injured his back during active service. 3. The veteran's current back disability is not related to the injury the veteran sustained during active service or any other event of service origin. 4. The current manifestations of the veteran's right knee disability include crepitus and subluxation. 5. The veteran's right knee disability is productive of no more than slight functional impairment. 6. The veteran was born in January 1952, has a high school education, and has occupational experience as a carpet layer. 7. The veteran's principal disabilities are low back and right knee disabilities. 8. The current manifestations of the veteran's low back disability include limitation of motion and paraspinal muscle spasm. 9. The veteran's low back disability is productive of no more than moderate functional impairment. 10. The veteran's disabilities are not productive of total disability and are not sufficient to render the average person unable to follow a substantially gainful occupation. 11. The veteran's disabilities do not permanently preclude him from engaging in substantially gainful employment consistent with his age, education, and occupational history. CONCLUSIONS OF LAW 1. The veteran has not submitted a well-grounded claim of entitlement to service connection for a low back disability. 38 U.S.C.A. §§ 1110, 7105 (West 1991); 38 C.F.R. § 3.303 (1993). 2. The criteria for an evaluation in excess of 10 percent for a right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Code 5257 (1993). 3. The veteran is not totally disabled nor is he unemployable due to permanent disability. 38 U.S.C.A. §§ 1155, 1502, 1521, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.340, 3.342, Part 4 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to Service Connection for a Low Back Disability The threshold question to be answered with respect to the veteran's request for service connection for a low back disability is whether he has presented a well-grounded claim; that is, a claim which is plausible and capable of substantiation. If he has not presented a well-grounded claim, his appeal must fail and there is no duty to assist him in the development of his claim because such additional development would be futile. See 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). As will be explained below, the Board finds that the veteran's claim is not well grounded. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The service medical records indicate that the veteran injured his back while playing football in September 1973. Upon examination, moderate paravertebral spasm was found and an impression of low back strain was recorded. The report of a January 1974 service medical examination, which was conducted shortly prior to the veteran's separation from service, reveals that the veteran experienced recurring muscle spasms on the lower left side of his spine when lifting weights, but that his spine was within normal limits at the time of the examination. Medical records from Fort Hamilton-Hughes Memorial Hospital Center show that the veteran complained of left posterior buttock and leg pain in March 1981. At that time, the veteran reported that he had been experiencing this pain for the prior 12 to 14 weeks and that the pain was not the result of a traumatic event. A lumbar myelogram revealed a herniated disc at the L5-S1 level on the left and the veteran underwent a left L5 hemilaminectomy and the removal of a herniated disc as well as a left S1 foraminotomy. A June 1981 outpatient treatment record indicates that the veteran reported that his original onset of back and left leg pain was in November or December 1980. In July 1981, the veteran completed his treatments for low back pain and reported experiencing some back discomfort but no limitation of spinal motion was found. In July 1988, the veteran was involved in an automobile accident and again sought treatment for low back pain. X-rays revealed straightening with a slight curvature of the lower lumbar spine and moderate narrowing of the L5-S1 disc space. The examiner rendered a diagnosis of low back strain following trauma. X-rays taken in May 1990 revealed no abnormalities of the veteran's lumbar spine other than narrowing of the L5-S1 disc space. A December 1990 treatment record from Dr. J.M. Dolbois indicates that the veteran apparently sustained a low back injury that was service related in 1973 and subsequently underwent a lumbar laminectomy in 1979. Dr. Dolbois further noted that twisting or the slightest labor exacerbated the veteran's symptoms. Dr. Dolbois opined that the veteran had foraminal narrowing and intermittent nerve root irritation, particularly with extension of the back. During a September 1991 VA examination, the veteran reported that he was loading tires into the back of a station wagon and something in his back "snapped." The veteran further noted that it was not until after three days of bed rest that he was able to walk in an erect position without pain. Upon examination, considerable tightness and spasm of the veteran's paraspinal muscles were noted. A well-healed scar was noted over the lower lumbar vertebra. Forward flexion, bending to the right, bending to the left, and extension backward were 90, 20, 45, and 0 degrees, respectively. The veteran's reflexes were equal and active and there was no atrophy. X-rays revealed degenerative changes at the L5-S1 level. A diagnosis of status postoperative surgery for herniation of a nucleus pulposus with evidence of recurrent disc disease or spinal stenosis was rendered by the examiner. The report of a March 1992 computerized axial tomography scan of the veteran's lumbar spine reveals degenerative changes at the L5-S1 interspace and broad based disc herniation or protrusion at L4-5 centrally and to the left. The veteran contends that his current low back disability is the result of the injury that he sustained during active service. The evidence of record, however, does not support the veteran's assertions. In this regard, the Board notes that the service medical records indicate that although the veteran injured his back playing football in September 1973, he did not subsequently seek treatment for back pain for the remainder of his period of service. In fact, the report of the January 1974 service medical examination reveals that the veteran's spine was within normal limits. Further, the veteran's original application for VA benefits in August 1974 makes no mention whatsoever of any low back problems and the veteran indicated to the staff at Fort Hamilton-Hughes Memorial Hospital Center that he did not begin experiencing back pain until 1980. Lastly, the claims file is devoid of any objective medical or clinical evidence indicating a relationship between the veteran's current back disability and his in-service injury or any other incident of service. Although the veteran maintains that such a relationship does in fact exist, he, as a layman, is not competent to address issues requiring expert opinion. Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Since lay assertions of medical causation cannot constitute evidence to render a claim well grounded, Jones v. Brown, slip op. at 5 (U.S. Vet. App. Nov. 21, 1994); Grottveit v. Brown, 5 Vet.App. 91, 92-3 (1993), the veteran's claim must be dismissed. 38 C.F.R. § 7105(d)(5); Boeck v. Brown, 6 Vet.App. 14, 17 (1993). II. Entitlement to an Increased Evaluation for a Right Knee Disability The service medical records indicate that the veteran complained of right knee pain in February 1973. Upon examination, popping, tenderness, and lateral subluxation of the knee were found. No instability of the knee was noted. In June 1973, the veteran sought treatment for recurring problems with his right knee. The report of a February 1975 VA examination shows that the veteran did not walk with a limp. The examiner noted marked crepitation upon extension of the knee and subluxation of the patella. No tenderness, limitation of motion, instability, or swelling was found. X-rays revealed no significant abnormality of the right knee. Based upon the service medical records and the report of the February 1975 VA examination, the RO granted service connection for subluxation of the right patella with arthritis and assigned this disability a 10 percent rating in March 1975. The report of a September 1991 VA examination reveals that there was no deformity or impairment in mobility of the veteran's right knee. Flexion and extension of the knee were 145 and 0 degrees, respectively. Crepitus was present on passive reflex and extension, but no atrophy or instability was noted. X-rays showed no abnormalities of the right knee. The veteran has been assigned a 10 percent evaluation for subluxation of the right patella with arthritis pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5257. Such an evaluation contemplates slight impairment of the knee. The next higher evaluation, a 20 percent rating, requires moderate impairment of the knee. After a thorough review of the evidence of record, the Board concludes that the current 10 percent evaluation most accurately represents the veteran's disability picture. In this regard, it is noted that the veteran's right knee was found not to be deformed, atrophied, or unstable during the September 1991 VA examination. In addition, no limitation of motion of the knee was noted. Although crepitus and subluxation were found during the September 1991 VA examination, they were productive of no more than slight functional impairment. Therefore, the preponderance of the evidence is against the assignment of an evaluation in excess of 10 percent. 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. Further, the Board finds in this case that the disability picture is not so exceptional or unusual so as to warrant an evaluation in excess of 10 percent on an extra-schedular basis. It has not been shown that the veteran's right knee disability has caused marked interference with employment or necessitated frequent periods of hospitalization so as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). III. Entitlement to a Permanent and Total Disability Evaluation for Pension Purposes Applicable Laws and Regulations Under 38 U.S.C.A. § 501 (West 1991), the Secretary of the VA has the authority to prescribe all rules and regulations which are necessary or appropriate to carry out the laws administered by the VA. With regard to claims for pension benefits, the Secretary's authority to prescribe regulations providing for determinations of permanent and total disability may be based in whole or in part upon subjective criteria. Talley v. Derwinski, 2 Vet.App. 282, 285 (1992). Both objective and subjective standards are often set forth within the same statutory provision or regulation. The basic law referable to pension benefits, for example, states that pension is payable to a veteran who served for 90 days or more during a period of war and who is permanently and totally disabled due to nonservice-connected disabilities not the result of his own willful misconduct. 38 U.S.C.A. § 1521. With reference to the permanence of a disability, the Board points out that the latter part of 38 U.S.C.A. § 1502(a) subjectively defines permanence, stating that permanent and total disability will be held to exist where the person is unemployable as a result of disability reasonably certain to last throughout the remainder of the person's life. Talley, 2 Vet.App. at 285. This definition of permanence is also set forth in 38 C.F.R. §§ 3.340(b), 4.15. Objective criteria to establish permanence of a disability are also provided in 38 U.S.C.A. § 1502. A finding of permanent and total disability is warranted where the person experiences any disability which is sufficient to render it impossible for an average person to follow a substantially gainful occupation. The "average person" standard is implemented by VA regulations, including 38 C.F.R. § 3.340(a) and 38 C.F.R. § 4.15, which provide that the total rating is based primarily upon the average impairment in earning capacity, i.e., the economic or industrial handicap which must be overcome. In addition, 38 U.S.C.A. § 1502(a)(2) essentially provides that permanent and total disability may exist in any disorder determined by the Secretary to be of such a nature and extent as to justify that persons suffering therefrom are permanently and totally disabled. A total disability rating is based primarily upon the average impairment in earning capacity. 38 C.F.R. § 4.15. The VA's Schedule for Rating Disabilities also provides a means for objective determination of total disability. When impairment is commensurate with a 100 percent rating in accordance with schedular criteria, a total rating on a schedular basis is warranted. 38 C.F.R. § 3.340(a)(2). Also, 38 C.F.R. § 4.17 provides that all veterans basically eligible and unable to secure or follow a substantially gainful occupation by reason of disability likely to be permanent shall be rated permanently and totally disabled. For pension purposes, the permanence of the percentage requirements of 38 C.F.R. § 4.16 is a requisite. 38 C.F.R. § 4.17. In making such determinations, marginal employment may be consistent with unemployability if the restriction of securing or retaining better employment is due to disability. Id. Marginal employment consists of employment as, for example, a self-employed farmer, while employed in his own business, or at odd jobs or while employed at less than half the usual remuneration. Id. In determining eligibility for pension benefits, subjective factors are also for consideration with regard to both permanence of the disability and total disability. As noted above, pension is payable to a veteran with the requisite service who is unemployable as a result of disability "reasonably certain" to last throughout the lifetime of the disabled person. Talley, 2 Vet.App. at 285; 38 U.S.C.A. § 1502(a). Subjective factors for consideration are also included in 38 C.F.R. § 4.15, which provides that in individual cases, full consideration will be given to such factors as unusual physical or mental effects in individual cases, peculiar effects of occupational activities, defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability, and the effect of combinations of disabilities. In addition, 38 C.F.R. § 4.17(b) states that where the veteran fails to meet the percentage requirements, but meets basic eligibility criteria and is unemployable, consideration of 38 C.F.R. § 3.321(b)(2) is appropriate. In turn, 38 C.F.R. § 3.321(b)(2) provides that where the veteran does not meet the percentage requirements of the Rating Schedule, but is unemployable by reason of his age, occupational background, or other related factors, a permanent and total disability rating on an extra-schedular basis is warranted. Entitlement to a Total Rating Based Upon Objective Criteria A. Low Back Disability The history of the veteran's low back disability is as previously reported in this decision. By decision in November 1991, the RO assigned a 20 percent disability evaluation to the veteran's low back disability under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5293. Such an evaluation is warranted upon the manifestation of moderate intervertebral disc syndrome with recurring attacks. The next higher 40 percent evaluation requires severe intervertebral disc syndrome with recurring attacks and intermittent relief. Based upon a review of the evidence of record, the Board concludes that the current 20 percent evaluation most nearly approximates the veteran's disability picture. In this regard, the Board notes that the veteran manifested recurring attacks and moderate limitation of motion during the September 1991 VA examination. In addition, no atrophy was noted and the veteran's reflexes were equal and active. Consequently, the preponderance of the evidence is against an evaluation in excess of 20 percent. B. Right Knee Disability An analysis of the veteran's current disability picture with respect to his right knee disability has previously been reported in this decision. C. Discussion The ratings in effect for the veteran's disabilities comprise a 30 percent combined disability evaluation in accordance with the provisions of 38 C.F.R. § 4.25. This 30 percent rating represents the average wage-earning impairment caused by the veteran's disabilities. As noted above, entitlement to pension benefits may be objectively determined if the veteran is unemployable as a result of a permanent disability or experiences a disability which would preclude an average person from following a substantially gainful occupation, if it is reasonably certain that such disability is permanent. 38 U.S.C.A. § 1502(a); 38 C.F.R. § 4.15. In this case, none of the disabilities from which the veteran experiences impairment is considered to constitute a permanent total disability under 38 C.F.R. § 4.15. In addition, a total disability rating for the veteran's disorders is not warranted under applicable schedular criteria contained in the Schedule for Rating Disabilities. As previously mentioned, the combined effect of the veteran's disorders is appropriately designated by a 30 percent disability evaluation. Although the veteran's disabilities may be considered to be of a permanent nature, they are clearly not representative of total disability in accordance with applicable schedular criteria or applicable regulations. 38 C.F.R. §§ 4.16, 4.17. Entitlement to a Total Rating Based on Extra-schedular Criteria As the veteran's disabilities do not meet the percentage requirements of 38 C.F.R. § 4.17, applied to pension cases through 38 C.F.R. § 4.16, the Board must determine whether the veteran would be eligible for pension benefits based upon subjective criteria, including consideration of the veteran's age, education and occupational history, and unusual physical or mental effects. 38 C.F.R. §§ 3.321, 4.15. In this regard, the Board notes that the veteran was born in January 1952 and has a high school education. He was a radar repairman in the service, and worked for several years for a electric company and as an electrical materials control liason person for at least two construction companies. In addition, the veteran reported that he last worked regularly in 1987 as a self-employed carpet layer. The veteran has also taken classes in tool and die making as well as electronics. The veteran contends that his low back and right knee disabilities significantly restrict his mobility and therefore substantially limit his employment opportunities. Limitation of function to the extent that the veteran would be rendered unemployable is not clinically substantiated in the record, as illustrated by the singular and combined evaluation for his disabilities. In addition, the claims file is devoid of any medical conclusion that the veteran is unemployable due to his disabilities. The Board further notes that even if the veteran was unable to be successfully employed as a carpet layer, there is no indication in the record that he would be unable to perform sedentary or semi-sedentary work, such as an electronics technician, which would require little, if any, mobility on the part of the veteran. Upon consideration of the combined effect of the veteran's disabilities, in addition to the veteran's age, education, and occupational history, the Board is not persuaded that the veteran is permanently and totally disabled. An allowance of pension benefits, therefore, is also not warranted based upon subjective criteria. 38 C.F.R. §§ 3.321, 4.15. Given all of the foregoing, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to a permanent and totally disability evaluation for pension purposes. As such, there is not an approximate balance of positive and negative evidence regarding the merits of the veteran's claim which would give rise to a reasonable doubt which could be resolved in the veteran's favor. 38 U.S.C.A. § 5107(b). ORDER The claim of entitlement to service connection for a low back disability is dismissed. An increased evaluation for a right knee disability is denied. A permanent and total disability evaluation for pension purposes is denied. CHARLES E. HOGEBOOM 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.