BVA9505490 DOCKET NO. 93-11 301 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to service connection for an eye disorder as secondary to service-connected chronic brain syndrome. 2. Entitlement to an increased evaluation for residuals of a fracture of the right tibia and fibula with atrophy of the calf and thigh muscles, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from October 1953 to May 1958. This appeal arose from a July 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The RO denied entitlement to service connection for an eye disorder as secondary to service-connected residuals of a fracture of the right tibia and fibula with atrophy of the calf and thigh muscles, and an increased evaluation for fracture residuals of the right tibia and fibula. The veteran submitted a claim for a permanent and total disability rating for pension purposes in 1992. During the RO hearing held in March 1993, the veteran claimed entitlement to service connection for psychiatric and neurologic disorders, tinnitus, and headaches as secondary to his service connected chronic brain syndrome, and an increased valuation for chronic brain syndrome. In a June 1994 statement on the veteran's behalf, the representative reminded the RO of the veteran's claim for pension benefits. It does not appear that any action has been taken on these claims by the RO. The Board of Veterans' Appeals (Board) is referring these issues to the RO for appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he developed a chronic eye disorder as the result of his service-connected chronic brain syndrome, thereby warranting a grant of service connection on a secondary basis. He avers that his fracture residuals of the right tibia and fibula are more disabling than currently evaluated, thereby warranting entitlement to an increased evaluation. 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 evidence of a well grounded claim for service connection for an eye disorder as secondary to his service-connected chronic brain syndrome, and that the preponderance of the evidence is against a grant of an increased evaluation for residuals of a fracture of the right tibia and fibula with atrophy of the calf and thigh muscles. FINDINGS OF FACT 1. The claim for service connection for an eye disorder as secondary to service-connected chronic brain syndrome is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. Residuals of a fracture of the right tibia and fibula with atrophy of the calf and thigh muscles are productive of a level of impairment compatible with malunion of a tibia and fibula with not more than moderate knee or ankle disability. CONCLUSIONS OF LAW 1. The claim for service connection for an eye disorder as secondary to service-connected chronic brain syndrome is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The criteria for an evaluation in excess of 20 percent for residuals of a fracture of the right tibia and fibula with atrophy of the calf and thigh muscles have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.71(a), Diagnostic Code 5262 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that his claim is well grounded; that is, that the claim is plausible. Grivois v. Brown, 6 Vet.App. 136, 139 (1994); Grottveit v. Brown, 5 Vet.App. 91, 92 (193). Because the veteran has failed to meet this burden, the Board finds that his claim for service connection for an eye disorder as secondary to service-connected chronic brain syndrome is not well grounded, and should be dismissed. Service connection may be granted for any disorder which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his lay opinion because he is not a medical health professional and does not constitute competent medical authority. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, his lay assertions cannot constitute competent medical evidence, and as cognizable evidence is necessary for a well grounded claim, Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the absence of cognizable evidence renders a veteran's claim not well grounded. Although the veteran has not otherwise contended that he has a chronic eye disorder due to service; nonetheless, a brief summary of the service medical records will serve for purposes of a more complete evaluation of the evidentiary record. In this regard, the Board observes that when examined for enlistment in October 1953, the veteran's uncorrected visual acuity was reported as 20/20 bilaterally. When examined for separation from service in May 1958, his uncorrected visual acuity was again reported as 20/20 bilaterally even though the veteran reported that he had gotten glasses one month previously. The appellant argues that he has an eye disorder which is due to his service-connected chronic brain syndrome, evaluated noncompensable. There is no evidence of record of a chronic eye disorder, much less competent medical evidence linking any eye disorder to the service-connected chronic brain syndrome. The veteran has failed to present cognizable evidence demonstrating a link between any eye disorder he may have and his service- connected chronic brain syndrome. As the veteran has failed to present a well grounded claim, his appeal as to service connection for an eye disorder as secondary to service-connected chronic brain syndrome must be dismissed. The determination to dismiss this part of the veteran's appeal has been made with due consideration to testimony provided by the veteran at an RO hearing held in March 1993. The Board recognizes that the appellant's claim has been disposed of in a manner different from that utilized by the RO. The Board therefor considered whether the claimant has been given adequate notice to respond, and if not, whether he has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 384 (1993). In light of the implausibility of the appellant's claim and his failure to meet his initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision. In this regard, the Board points out that by the action of dismissing his claim, the Board has not burdened the veteran with a prior final adjudication on the merits. Thus, if he is able to submit a well grounded claim in the future, he will not be faced with the higher hurdle of providing new and material evidence to reopen his claim after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105; McGinnis v. Brown, 4 Vet.App. 239, 244 (193). The Board also observes that the RO, in assuming that the veteran's claim was well grounded, accorded him greater consideration than his claim in fact warranted under the circumstances. Bernard. To remand the case to the RO for consideration of the issue of whether the appellant's claim is well grounded would be pointless and, in light of the law cited above, would not result in a determination favorable to him. VA O.G.C. Prec. Op. 16-92, 57 Fed.Reg. 49,747 (1992). II. Entitlement to an increased evaluation for residuals of a fracture of the right tibia and fibula with atrophy of the calf and thigh muscles, currently evaluated as 20 percent disabling. The Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that he has presented a claim which is plausible. The Board is satisfied that all relevant facts have been properly developed, and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1 and 4.2, and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the veteran's residuals of a fracture of the right tibia and fibula with atrophy of calf and thigh muscles. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence of record is inadequate for rating purposes. The service medical records show that in March 1957 the veteran sustained a compound, comminuted fracture at the mid shaft of the right tibia and fibula. He was hospitalized for treatment of the fracture. At a July 1958 VA examination the veteran complained of soreness at the site of a previous fracture of the right lower extremity. On examination the veteran's gait was observed to be normal. There was a 2 inch scar on the anterior surface at the upper third of the right leg. Posteriorly was seen a 2 by 1 1/2 inch oval scar with loss of underlying tissue just below the belly of the gastrocnemius. Extension and flexion of the right knee were noted to be normal. There was described a slight loss of dorsiflexion of the right ankle. There was slight swelling of the ankle. An x-ray of the right leg revealed an old healed oblique fracture of the tibia at the junction of the proximal and middle third. Some osteoporosis of the ankle bones was noted. The examination diagnosis was residuals of a fracture of the right tibia. The RO granted entitlement to service connection for residuals of a fracture of the right tibia and fibula with atrophy of the calf and thigh muscles with assignment of a 20 percent evaluation when it issued a rating decision in July 1958. An August 1970 VA orthopedic examination concluded in diagnoses of an old, healed, fracture of the right tibia and loss of motion of the right knee and right ankle. VA outpatient treatment reports dated in March 1992 note the veteran had a right leg fracture with some limitation of motion. He was also noted to have mild disability from a fracture of the right tibia. At a March 1993 RO hearing, the veteran testified that he had had pain in his right lower extremity for many years due to his previous service incurred fracture. He stated that the pain went from his toes to his hips. He had to get off his leg to obtain relief of pain. He stated that his knee locked up. The appellant stated that his leg had been pretty much the same since his original hospitalization in service for treatment of the fracture. It was argued that the veteran had not been formally examined for many years. An October 1993 VA outpatient treatment report shows the veteran complained of stiffness of his right leg. The veteran's right tibia and fibula fracture residuals are rated as 20 percent disabling under diagnostic code 5262 of the VA Schedule for Rating Disabilities. The 20 percent evaluation contemplates malunion of a tibia and fibula with moderate knee or ankle disability. The next higher evaluation of 30 percent requires malunion of a tibia and fibula with marked knee or ankle disability. The Board observes that VA outpatient treatment reports have not demonstrated malunion of the veteran's right tibia and fibula with marked knee or ankle disability. Residuals of a fracture of the right tibia and fibula are for the most part manifested by complaints of pain and stiffness. VA outpatient treatment reports dated in 1992 show that the veteran's right lower extremity was reported to be not more than mild in nature. The medical evidence currently of record is sufficient upon which to predicate a determination of the appeal without a need for formal examination as current evidence shows that the right lower extremity disability is productive of only mild disablement. There exists no basis upon which to predicate a grant of an increased evaluation. The pain in the right lower extremity is already compensated in the current 20 percent evaluation thereby precluding assignment of a compensable evaluation under the criteria of 38 C.F.R. § 4.40. No question has been presented as to which of two or more evaluations would more properly classify the severity of the right lower extremity fracture residuals. 38 C.F.R. § 4.7. Severe impairment of the right knee as to warrant a grant of an increased evaluation of 30 percent under diagnostic code 5257 has not been shown. Limitation of right leg flexion to 15 degrees which would warrant an increased evaluation of 30 percent under diagnostic code 5260 has not been shown. Limitation of right leg extension to 20 degrees which would warrant a grant of an increased evaluation of 30 percent under diagnostic code 5261 has not been shown. Residuals of a fracture of the right tibia and fibula with atrophy of the calf and thigh muscles have not rendered the veteran's disability picture unusual or exceptional in nature and have not markedly interfered with employment. They have not required frequent inpatient care as to render impractical the application of regular schedular standards, thereby precluding a grant of an increased evaluation on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). It is the judgment of the Board that the veteran's right lower extremity disability has not increased in severity thereby precluding a grant of entitlement to an increased evaluation. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.71(a), Diagnostic Code 5262. ORDER The claim for service connection for an eye disorder as secondary to service-connected chronic brain syndrome is dismissed. Entitlement to an increased evaluation for residuals of a fracture of the right tibia and fibula with atrophy of the calf and thigh muscles is denied. ALBERT D. TUTERA 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.