BVA9504195 DOCKET NO. 91-38 860 ) 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 disorder and a right knee disorder on a secondary basis. 2. Entitlement to an increased rating for a left knee disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from April 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1990 decision by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio (RO). The appeal was remanded by the Board in April 1994 for further development. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran's service-connected left knee disability has been the proximate cause of low back and right knee disabilities. It is asserted that the veteran's left knee disability is more disabling than currently evaluated. It is asserted that the veteran experiences swelling, instability, pain, and limitation of motion. 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 issues of service connection for back and right knee disabilities on a secondary basis, 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 an increased rating for a left knee disability, the record supports the grant of a 20 percent evaluation. FINDINGS OF FACT 1. With respect to the increased rating, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The claims for service connection for low back and right knee disabilities on a secondary basis are not supported by cognizable evidence showing that the claims are plausible or capable of substantiation. 3. Moderate impairment of the service-connected left knee disability is demonstrated by effusion, limitation of motion, and reported give way and pain. CONCLUSIONS OF LAW 1. The claims for service connection for low back and right knee disabilities are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. A 20 percent evaluation for the left knee disability is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.7, Part 4, Codes 5257, 5260, 5261 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Right Knee and Low Back The threshold question to be answered with respect to these issues is whether the veteran has presented evidence of well-grounded claims; that is, claims which are plausible. If he has not presented well-grounded claims, his appeal must fail and there is no duty to assist him further in the development of these claims because such additional development would be futile. 38 U.S.C.A. § 5107. As will be explained below, the Board finds that his claims for service connection for right knee and low back disabilities on a secondary basis are not well grounded. The claim is, in substance, that the veteran's service-connected left knee disability has affected him to such an extent as to cause disabilities of his right knee and low back. Service medical records, dated in May 1970, reflect that the veteran sustained back trauma in a bar assault. A physical profile record, dated in April 1970, reflects that the veteran was placed on profile due to a bruise to his back. The remaining service medical records, including the report of the veteran's November 1971 service separation examination, are silent with respect to any complaint, treatment, or finding of any back disability. Service medical records dated in 1971 indicate that the veteran underwent surgery for a torn left medial meniscus. The report of an April 1973 VA orthopedic examination notes the August 1971 surgery with the medial cartilage being removed on the left. The veteran indicated that he sometimes had pain on exertion and on two occasions there was swelling, but no locking of the left knee. The left knee did not give way and he indicated no other symptoms. Examination revealed that the veteran walked without a limp. There was a 2-inch healed scar in the medial aspect of the left knee. There was no tenderness, swelling, or loss of motion in the knee. There was slight crepitation on motion. The knee was stable. X-rays of the left knee revealed that the bony structures were intact. The diagnosis was residuals of surgery for medial meniscus of the left knee. A May 1973 rating decision granted service connection for medial meniscectomy of the left knee, and assigned a 10 percent evaluation. That evaluation has remained in effect until the present time. The report of a March 1974 VA orthopedic examination reflects that the veteran associated back pain with the same inservice bus accident in which he injured his left knee. Examination indicated that the veteran had a normal gait and could squat and stand on his heels and toes without difficulty. There was no instability of the left knee. The report of a February 1981 VA examination states that the veteran reported that he wore a knee brace on his left knee all the time, and had been wearing it for six months. Examination revealed that the veteran favored the left leg slightly while walking. He could squat without difficulty. He indicated no complaints with respect to the back or right knee, and no findings or diagnoses with respect to the back or right knee were offered. The first clinical evidence of record which indicates complaints with respect to the right knee are outpatient treatment records dated in November 1980. At that time the veteran reported pain in the right knee since the morning on the day he was seen. He had played ball with the kids the previous day. In June 1981 he complained of back pain. In 1982 and 1983 the veteran had complaints of right knee pain. In July 1983 paravertebral muscle spasm due to playing ball was noted. In January 1984 the veteran was seen with complaints of right hip pain and leg pain with numbness of the right lower leg of a few days' duration. The veteran was hospitalized at Mercy Hospital in January 1984 with the chief complaint of low back and leg pains of about 1 to 2 weeks' duration. He underwent a right L4-5 hemilaminectomy and removal of disc extrusion. A May 1986 letter from Gary L. Ray, M.D., states that the veteran was in his usual state of health until December 1983 when he was rolling a hot water heater in his basement in a flexed position and felt the onset of low back pain and right lower extremity pain. At the time of the injury, he was on vacation and when he returned to work he had difficulty performing his responsibilities. He underwent surgery in January 1984. He returned to work in July 1984. By January 1985 his back pain became progressively worse and in February 1985 he underwent a second surgical procedure for low back pain. He returned to work in July 1985 and did well until October 1985 when he was sliding a washing machine into place and felt the onset of low back pain and right lower extremity pain. Since that time the veteran had been unable to return to work. The report of an August 1990 VA examination states that the veteran reported that his right knee would hurt off and on. The diagnoses included chondromalacia of the right knee and residual of surgery times two for herniation of nucleus pulposus. X-rays of the right knee revealed no bony abnormality. The examiner opined that the veteran's right knee and low back disabilities were not the result of his left knee disability. The above review of the evidence of the veteran's currently manifested disabilities with respect to the low back and right knee is status post herniated nucleus pulposus with surgery times two and chondromalacia, respectively. None of the clinical evidence of record associates these disabilities with the veteran's service-connected left leg disability. Rather, the clinical evidence associates the veteran's low back disability with strain involved in moving a water heater and washing machine. During the veteran's hearing in January 1991, he offered testimony concerning his low back, and right and left knee disabilities, which the Board finds to be credible. However, causative factors of a disease are a medical question and only a physician's opinion would be competent evidence. Grottveit v. Brown, 5 Vet.App. 91 (1993). As the veteran has failed to submit medical evidence showing a relationship between any currently manifested low back or right knee disability and his service-connected left knee disability, the claims for service connection for low back and right knee disabilities on a secondary basis are 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 and it must, accordingly, be dismissed. Boeck v. Brown, 6 Vet.App. 14 (1993). II. Left Knee The veteran's claim, with respect to this issue, is "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. The veteran initially injured his left knee in a bus accident during his active service. The history, with respect to the left knee disability, has been set forth in the preceding discussion. The report of the August 1990 VA examination states that the veteran was wearing a well-worn brace on his left knee. Examination of the left knee revealed two surgical scars, one medially and one laterally. Range of motion of the left knee was from 0 to 130 degrees. Crepitus was present on passive flexion and extension. The knee was stable. There was some tenderness present about the knee joint. X-rays of the left knee revealed severe narrowing of the joint space with spurs at the margin of the condyles. There was also spur formation at the patellofemoral joint and the impression was severe degenerative joint disease. The diagnoses included residuals of left medial meniscectomy, post surgical and post-traumatic arthritis. During the veteran's personal hearing in January 1991, he testified that in the previous year he had fallen once when he was not wearing his knee brace at home. He indicated that he received cortisone shots for his left knee, as well as being prescribed, for both his knee and his back, Valium and Tylenol IV for relaxation and pain. He indicated that his left knee had pain, instability, limitation of motion, and swelling. The report of a June 1994 VA orthopedic examination states that the veteran used a cane. He walked with a distinct limp favoring the left side. He reported that the use of the cane was both for his back and his knee. Examination of the left knee noted considerable swelling. There was a rather marked valgus deformity present. Range of motion was accomplished in flexion to 90 degrees with a complaint of pain. Manipulation of the knee was difficult, but it did seem stable. Crepitus was present on passive flexion and extension. The veteran was wearing a hinge- type knee brace. The diagnoses included status post surgery, left knee for meniscectomy, traumatic arthritis. In reaching its decision with respect to the left knee, 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 the left knee disability has caused marked interference with employment or necessitated frequent periods of hospitalization. The record reflects that the veteran's hospitalization has been secondary to his nonservice-connected low back disability. The veteran has also been placed on disability retirement from his employment as well as been awarded Social Security benefits on the basis of disability. However, the interference with his employment began after he experienced the herniated nucleus pulposus in December 1983. It was after that occurred, and the subsequent surgeries, that the record indicates that the veteran became unable to perform the requirements of his job. Therefore, the marked interference with his employment is associated with his low back, and not his left knee. 38 C.F.R. § 3.321(b)(1) (1993). Although the veteran wears a brace on his left knee, the clinical evidence of record does not reflect that it is unstable. The reports of examinations consistently reflect that instability has not been found. However, severe degenerative joint disease is indicated as well as effusion. While the report of the August 1990 VA examination indicates full range of motion, the report of the June 1994 VA orthopedic examination reflects some limitation of flexion. The normal range of motion for a knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71 (1993). A 10 percent rating is warranted per Code 5257 for knee impairment, based upon recurrent subluxation or lateral instability that is slight. When the disability is moderate, the rating is 20 percent, and when severe, the rating is 30 percent. Based upon Codes 5260 and 5261, a 10 percent rating is warranted when flexion is limited to 45 degrees or extension by 10 degrees. When flexion is limited to 30 degrees, or extension limited by 15 degrees, the rating is 20 percent. When flexion is limited to 15 degrees or extension is limited by 20 degrees, the rating is 30 percent. With consideration of the pain reported by the veteran and occasional give way, as well as swelling and limited motion moderate impairment of the left knee is more probably than not demonstrated. Therefore, a 20 percent evaluation may be assigned. The criteria for an evaluation greater than 20 percent have not been met or approximated. Flexion has not been shown to be limited to 30 degrees, nor has extension been shown to be limited to 20 degrees. Rather, the veteran retains good range of motion in his left knee, and instability has not been demonstrated. While he does experience pain, effusion, some limitation of motion, and occasional give way, the record does not indicate that severe impairment is demonstrated. Instability is not demonstrated, nor is severe recurrent subluxation shown. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.7, Part 4, Codes 5257, 5260, 5261. ORDER The issues of entitlement to service connection for low back and right knee disabilities on a secondary basis are dismissed. An increased rating for a left knee disability, to the extent indicated, is granted, subject to laws and regulations governing the payment of monetary benefits. E. W. SEERY 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.