BVA9502191 DOCKET NO. 93-08 774 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a low back condition, claimed as secondary to the veteran's service-connected left knee disability. 2. Entitlement to an increased rating for chondromalacia, left patella postoperative patellectomy with degenerative joint disease, and medial compartment of the left knee, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Patrick J. Costello, Associate Counsel INTRODUCTION The veteran had active military service from April 1953 to November 1955. This matter came before the Board of Veterans' Appeals (hereinafter the Board) on appeal from a May 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Buffalo, New York, which denied the veteran's claims for an increased rating for his service-connected left knee disability and for service connection for a back condition secondary to his knee condition. CONTENTIONS OF APPELLANT ON APPEAL The veteran avers that the RO erred when it failed to grant him an increased rating for his left knee condition. He maintains that the condition severely restricts his movements, and impairs his duties as a mail carrier. He additionally claims that as a result of his knee condition, he has fallen several times injuring his back. As a result of these injuries, the veteran now asks that he be service-connected for a back condition resulting from or secondary to his 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 claim for service connection for a back condition secondary to a service-connected left knee disability is not well-grounded. It is also the decision of the Board that the preponderance of the evidence is against an increased rating for a left knee condition presently evaluated as 20 percent disabling. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the agency of original jurisdiction. 2. Service medical records are negative for any treatment for or diagnosis of a lower back condition. 3. Post-service medical records do not causally link a low back disability with events in service or with a service-connected disability. 4. The veteran's left knee disorder is characterized by mild crepitus, normal flexion and full extension; inflammation, deformity, subluxation, and lateral instability are not shown. 5. Neither an exceptional nor unusual disability picture has been presented so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The claim for entitlement to service connection for a back condition secondary to a service-connected left knee disability is not well-grounded. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1994). 2. The criteria for a 20 percent evaluation for a left knee condition have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, Part 4, Diagnostic Code 5257 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS While in service, the veteran dislocated his left knee numerous times. He was repeatedly hospitalized for the dislocations and eventually underwent a patellectomy. Upon discharge from the military, the veteran applied for VA compensation benefits. He was awarded those benefits in March 1956. VA Form VB 8-564, Rating Sheet, March 26, 1956. He was initially rated as 30 percent disabled in accordance with Diagnostic Codes 5257-5263, of 38 C.F.R. Part 4 (1956). This rating was later reduced to 10 percent in August 1956. VA Form VB 8-564, Rating Sheet, August 13, 1956. Afterward the knee showed some instability, and an increased rating was deemed warranted. VA Form VB 8-564, Rating Sheet, March 13, 1957. Since 1957, the veteran's left knee has been rated as 20 percent disabling. I. Service Connection for a Back Condition In the early 1970's, the veteran started complaining of recurring back injuries. He has stated that these injuries are due to or a result of his left knee condition. He has now come to the Board requesting service connection on a secondary basis for this condition. Under 38 U.S.C.A. §§ 1110, 1131 (West 1991), compensation will be provided if it is shown that the veteran suffers from a disease or injury incurred in or aggravated by service. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1994). Moreover, service connection may be granted for a disability that is proximately due to or a result of a service-connected condition. 38 C.F.R. § 3.310 (1994). When service connection is established for a secondary condition, the secondary condition shall be considered as part of the original condition. However, a current disability must exist. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Before service connection may be decided, the initial question for resolution is whether the veteran has submitted a well-grounded claim in accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet.App. 78 (1990). We find that this requirement has not been satisfied with respect to the veteran's claim that he suffers from a back condition secondary to his left knee disability. Per 38 U.S.C.A. § 5107 (West 1991), and subsequently Tirpak v. Derwinski, 2 Vet.App. 609 (1992), a well-grounded claim requires more than just a mere allegation. The appellant in this case must submit supporting evidence that would justify the belief that the claim is plausible. In this instance, the appellant asserts that he suffers from a back condition secondary to his left knee disability. He avers that because his left knee "gives out", he falls and subsequently injures his back. However, the record does not contain any medical evidence corroborating the veteran's claim. In this instance, there are only his statements in support of his claim. None of the medical records indicate that the veteran's back condition is a result of his left knee disability. Instead the medical record shows that in 1970 when the veteran was attempting to rise from a chair, he injured his back. VA Form 10-1000, Hospital Summary, November 1970. A disciplinary letter from the U.S. Post Office in August 1991, indicates that the veteran's back injuries have occurred when the veteran has been careless and performing his employment duties in an unsafe manner. This letter shows an injury to the back after slipping on wet stairs and on ice. Letter from J. Liberti, August 9, 1991. Recent medical evidenc shows degenerative disc disease at L5-/S1 with arthritis at other levels, but the medical evidence does not attribute this to a left knee problem. These records do note that back pain resulted from a fall on ice. While we do not doubt that the veteran is sincere in his belief that his back condition was caused by his left knee disability, he is not medically qualified to make such a determination. That is, because the veteran does not have medical training that would qualify him as an expert, he may not be permitted to make such a diagnosis and conclusion. Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992). Thus, in accordance with Montgomery v. Brown, 4 Vet.App. 343 (1993), we find that the absence of recent medical records or physicians' statements demonstrating the etiological relationship between the two conditions outweighs his assertions that the two conditions are related to one another. The mere contentions of the veteran, no matter how well-meaning, without supporting evidence, do not constitute a well-grounded claim. Fields v. Derwinski, U.S. Vet. App. No. 90-933 (Dec. 2, 1991); King v. Brown, U.S. Vet. App. No. 92-709 (Apr. 20, 1993). In two recent decisions, Grottveit v. Brown, 5 Vet.App. 92 (1993), and Grivois v. Brown, 6 Vet.App. 136 (1994), the Court has held that claims for service connection denied on the merits by the Board and, preceding the Board's decisions, by the Regional Office, were not well-grounded, and that "the [Board] and the Regional Office erred in not so deciding the claim." Grottveit, at 92. The governing law, 38 U.S.C.A. § 5107(a) (West 1991), [R]eflects a policy that implausible claims should not consume the limited resources of the VA and force into even greater backlog and delay those claims which - as well- grounded - require adjudication. . . Attentiveness to this threshold issue is, by law, not only for the Board but for the initial adjudicators, for it is their duty to avoid adjudicating implausible claims at the expense of delaying well-grounded ones. Grivois, 6 Vet.App. at 139. The Court expressed its concern that a decision on the merits, if deemed final, could constitute an unwarranted impediment to the appellant should he seek to reopen the claim because new and material evidence would be required to reopen. The Court deemed it appropriate, where the Board denied on the merits a claim that was not well-grounded, to "recognize the nullity of the prior decisions and allow appellant to begin, if he can, on a clean slate." Grottveit, at 93; Grivois, 6 Vet.App. at 140. In both cases, the Court vacated the Board's decision and remanded with instructions to vacate the decision of the RO. Id.; Grivois, 6 Vet.App. at 141. In view of the clear direction given by the Court, it is imperative that finality in accordance with 38 C.F.R. § 3.104 (1994), not attach to the rating decisions of May 24, 1991, and February 24, 1993, along with the Hearing Officer's Decision of September 22, 1992, insofar as they pertain to a claim for entitlement to service connection for a back condition secondary to the veteran's service-connected left knee disability. II. Increased Rating In accordance with 38 U.S.C.A. § 5107 (West 1991), and Murphy v. Derwinski, 1 Vet. App. 78 (1990), the appellant has presented a well-grounded claim for an increased rating for his service- connected left knee disability. The facts relevant to this appeal have been properly developed and the obligation of the Department of Veterans Affairs (VA) to assist the veteran in the development of his claim has been satisfied. Id. Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4 (1994). In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1994). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, and 4.59 (1994). Slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment, and a 30 percent evaluation requires severe impairment. 38 C.F.R. Part 4, Diagnostic Code 5257 (1994). Under related Diagnostic Codes pertaining to knee disorders, a 20 percent evaluation will be assigned when flexion of the leg is limited to 30 degrees. A 30 percent rating requires flexion limited to 15 degrees. 38 C.F.R. Part 4, Diagnostic Code 5260 (1994). A 20 percent evaluation will be assigned when extension of the leg is limited to 15 degrees. A 30 percent rating requires extension limited to 20 degrees. 38 C.F.R. Part 4, Diagnostic Code 5261 (1994). As noted above, the veteran has received a 20 percent disability compensation for his left knee. In April 1991, the veteran underwent a VA compensation and pension examination for his back and left knee. VA Form 2545, Report of Medical Examination for Disability Evaluation, April 15, 1991. This official examination report noted mild crepitus of the knee with a range of motion from 0 to 120 . Tenderness was reported along the knee, and there was a negative Lackman's sign. Based on this report, the RO continued the previous 20 percent evaluation pursuant to 38 C.F.R. Part 4, Diagnostic Code 5257 (1991). VA Form 21-6796, Rating Decision, May 24, 1991. The veteran is appealing the assignment of a 20 percent disability evaluation and he argues that it is insufficient to compensate him for the severity of his left knee disorder. He further implies that a change in Diagnostic Codes would allow the assignment of a higher evaluation. Since the May 1991 Rating Decision, the veteran was re-examined in October 1993. This examination report reveals that the extension of the left knee is normal, with flexion limited to 130 degrees (140 degrees is normal). See 38 C.F.R. § 4.71, Plate II (1994). There was no indication of instability, subluxation, swelling, or effusion in the left knee joint, and there is no report that deep tendon reflexes were anything but normal. X-ray examination showed mild degenerative arthritis of the left knee. Ankylosis was not indicated. The veteran's current 20 percent evaluation is the not the maximum permitted under Diagnostic Code 5257 for the veteran's knee condition. 38 C.F.R. Part 4 (1994). The veteran has implied that, if a higher rating cannot be granted under Diagnostic Code 5257, a different Diagnostic Code should be employed which could give him a higher rating. We have reviewed the provisions of the various Diagnostic Codes addressing knee disabilities, but find that no higher evaluation would result from a change in Code or under Diagnostic Code 5257 itself. 38 C.F.R. Part 4 (1994). The x-ray films show evidence of arthritis of the left knee. However, Diagnostic Code 5003 and 5010, used in the evaluating of arthritis, provides that compensation is to be based on the limitation of motion as set forth in the applicable Diagnostic Code for the affected joint. 38 C.F.R. Part 4 (1994). Diagnostic Code 5261 provides for greater than a 20 percent rating if extension is limited to 20 degrees or greater, and Diagnostic Code 5260 provides for a 30 percent rating if flexion is limited to 15 degrees. However, in this case the extension in the veteran's left knee is normal, and flexion is limited to only 130 degrees, so that a greater evaluation is not possible under either of these Codes. Diagnostic Code 5257 provides compensation of 30 percent for severe recurrent subluxation or lateral instability. 38 C.F.R. Part 4 (1994). Although we note that the veteran has indicated that he has been prescribed a knee brace for his left knee, the current examination report is devoid of any findings suggesting subluxation or instability in the left knee joint. Additionally, Diagnostic Code 5256 provides compensation for ankylosis. Yet, ankylosis has not been associated with the veteran's left knee disorder, either historically or currently. Based on our analysis, we find that evaluating the veteran's left knee either under the present Diagnostic Code of 5257 or under a different Diagnostic Code would not result in an increased rating for the veteran's left knee disorder. We find that a 20 percent evaluation under Diagnostic Code 5257 most nearly approximates the veteran's left knee disability, and that no more than a 20 percent evaluation is warranted. 38 C.F.R. Part 4 (1994). While the evidence indicates that the veteran currently experiences pain on flexion and some ligament laxity, these symptoms are adequately compensated for by the current rating. Medical evidence failed to reveal severe crepitus, effusion, inflammation, lateral instability, visible deformity or fluid in the left knee. In addition, range of motion tests indicated that both flexion and extension were normal. On the basis of the foregoing findings, the knee disorder does not meet the criteria for an increased evaluation under Diagnostic Codes 5257, 5260 or 5261. 38 C.F.R. Part 4 (1994). Additionally, no ankylosis or dislocation of the left knee, or nonunion or malunion of the tibia has been shown such as to warrant a higher rating pursuant to Codes 5256, 5258, or 5262. 38 C.F.R. Part 4 (1994). It is our opinion that the current 20 percent rating provides adequate compensation for symptomatology related to the veteran's left knee disorder. Should symptoms increase in severity, the veteran is free to reopen his claim. III. Extraschedular Evaluation Consideration has also been given to the potential application of the extraschedular evaluation provisions of 38 C.F.R. § 3.321(b) (1994). The evidence does not present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Specifically, there has not been a demonstration of marked interference with employment or frequent periods of hospitalization so as to render impractical the application of the regular schedular criteria. ORDER 1. A well-grounded claim for service connection for a back condition secondary to a service-connected left knee disability, not having been submitted, the claim is dismissed, and the rating decisions of May 24, 1991, and February 24, 1993, along with the Hearing Officer's Decision of September 22, 1992, insofar as they pertain to the claim for entitlement to service connection for a back condition are vacated. 2. Entitlement to an increased evaluation for a left knee condition is denied. BETTINA S. CALLAWAY 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.