BVA9502378 DOCKET NO. 93-07 354 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for residuals of fractures of the ribs. 2. Entitlement to service connection for an eye disability. 3. Entitlement to an increased rating for chondromalacia of the left knee, currently evaluated as 10 percent disabling. 4. Entitlement to an increased (compensable) rating for residuals of realignment of the right knee, with removal of screws from the right femur. 5. Entitlement to an increased (compensable) evaluation for bilateral hearing loss disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mark D. Hindin, Counsel INTRODUCTION The veteran had active service from May 1983 to April 1990. This matter arises from a November 1990, rating decision in which the regional office (RO) denied entitlement to service connection for residuals of rib fractures, established a 10 percent evaluation for chondromalacia of the left knee, and noncompensable evaluations for patella realignment of the right knee, and bilateral hearing loss disability. In May 1991, the RO denied entitlement to service connection for an eye disability. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he experienced rib fractures during service and was also found to have traumatic mydriasis and iritis. He asserts that he should therefore be service connected for those disabilities. He also points out that the service department evaluated his right knee disability as 30 percent disabling. He maintains that since that time, his hearing loss and knee disabilities have become more severely disabling, and he should be granted increased ratings. 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 of Veterans' Appeals (the Board) that the veteran has not submitted well-grounded claims of service connection for residuals of rib fractures or an eye disability. The Board also finds that the preponderance of the evidence is in favor of the grant of a 20 percent rating for chondromalacia of the left knee; and a 10 percent evaluation for residuals of realignment of the right knee with residuals of removal of screw from the right femur, but is against the grant of a compensable rating for bilateral hearing loss disability. FINDINGS OF FACT 1. All evidence necessary for an equitable resolution of this case has been secured. 2. There is no credible evidence of rib fractures in service or of residuals of rib fractures since service. 3. There is no credible evidence of an eye disability since service. 4. Chondromalacia of the left knee is manifested by hyperextension of the knee, a patella which can be dislocated, and X-ray evidence of subchondral sclerosis, but without current evidence of severe disability. 5. Residual of realignment of the right knee, with removal of screws from the right femur is manifested principally by hyperextension of the knee, with X-ray evidence of arthritis of the patella-femoral joint, and chondrosclerosis. 6. The veteran has level I hearing loss in each ear. CONCLUSIONS OF LAW 1. The veteran has not presented a well-grounded claim for service connection for residuals of fractures of the ribs. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1993). 2.. The veteran has not presented a well-grounded claim for service connection for an eye disability. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304 (1993). 3. A 20 percent evaluation is warranted for chondromalacia of the left knee. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 3.655, 4.7, Part 4 Diagnostic Code 5257 (1993). 4. A 10 percent evaluation is warranted for residuals of realignment of the right knee, with removal of screws from the right femur. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.655, 4.7, Part 4 Diagnostic Code 5257. 5. A compensable evaluation for bilateral hearing loss disability is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.655, 4.7, 4.85, Part 4, Diagnostic Code 6100 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Residuals of Rib Fractures and Eye Disabilities Under the provisions of 38 U.S.C.A. § 5107 the veteran has the initial burden of submitting evidence of well-grounded claims. If his claims are not well-grounded, the VA does not have jurisdiction to adjudicate those claims, and those claims must be dismissed. Boeck v. Brown, 6 Vet.App. 14 (1993). The United States Court of Veterans Appeals (the Court) has provided guidance as to what constitutes a well-grounded claim. The Court has held that claims of service connection must be accompanied by supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). In the instant case the veteran has failed to furnish such evidence. A claim is not well grounded where there is no credible evidence that the claimed condition is actually present. Rabideau v. Derwinski, 2 Vet.App. 141 (1992). Additionally a lay person is not qualified to offer credible evidence of medical diagnosis or causation. Grottveit v. Brown, 5 Vet.App. 91 (1993). The veteran has submitted no medical evidence showing rib fractures in service, and medical evidence since service showing residuals of such an injury. As a layman, he would not be qualified to diagnose rib fractures in himself. The veteran suggested during VA examination in August 1990, that he was found to have a right rib fracture on hospitalization during service. Such hearsay reports of what a lay person was told by a medical professional, cannot constitute credible medical evidence to show that a claim is well-grounded. Warren v. Brown, 6 Vet.App. 4 (1993). The available service medical records have been secured. These include detailed records of medical evaluation board proceedings and examinations, as well as records of private treatment afforded the veteran during service for conditions not currently at issue. None of these records make any mention of an injury of the ribs. The veteran has not submitted any evidence of current disability resulting from the claimed rib fractures in service. On chest X-ray examination during VA examination in August 1990, no rib fractures or their residuals were reported. Since there is no credible evidence of rib fractures during service or of residuals of rib fractures since service, the Board must conclude that his claim for service connection for residuals of rib fractures is not well grounded. The veteran has complained of chest pain on occasion but these were subjective complaints and no objective basis for them has been established. The Board does not find these credible for establishing the existence of a chronic rib disability resulting from an inservice fracture. The veteran has submitted evidence in the form of service medical records, which shows that in May 1985, he was found to have traumatic mydriasis, iritis and an inflamed and dilated pupil in the right eye due to trauma. There is no evidence of treatment for these conditions after June 1985. An eye disability was not identified in the medical evaluation board proceedings completed in February 1990, or in any of the post-service medical records. In August 1990, the VA neurological examiner did note the presence of tiny area of injection in the right sclera, but concluded that the eyes appeared to be normal to him. The veteran has also not reported any current eye disability. Since there is no current evidence of an eye disability, the Board concludes that this claim is not well grounded. II. Whether the Claims for Increased (Compensable) Ratings Are Well Grounded The Board finds that the veteran has presented well-grounded claims within the meaning of 38 U.S.C.A. § 5107, for an increased rating for left knee chondromalacia, and compensable ratings for his right knee disability and bilateral hearing loss disability. In this regard he has submitted evidence in support of his claims which renders them plausible. The Board also finds that VA has complied with its obligation to assist him with the development of those claims under the same code provision. The VA examination conducted in August 1990 does contain some deficiencies, most notably a failure to report specific ranges of motion in the knees. However, the RO scheduled the veteran for another VA examination, but he failed, without explanation, to report for that examination. Under the provisions of 38 C.F.R. § 3.655, where a veteran without good cause, fails to report for a scheduled examination scheduled in conjunction with an original claim for compensation, a decision will be made based on the evidence of record. III. Left Knee Disability On examination conducted for a medical evaluation board in December 1989, the veteran was noted to have mild left knee pain. The range of motion in the left knee was from 0 to 125 degrees. The report of medical board proceedings dated in January 1990, notes that the veteran was found to have patella-femoral syndrome, which had begun in approximately 1986. A 10 percent evaluation has been in effect for this disability since the day after separation from service in April 1990. The veteran's left knee disability has been rated under the provisions of Diagnostic Code 5257; 38 C.F.R. § 4.71(a) (1993). That diagnostic code provides a 10 percent evaluation for impairment of the knee including recurrent subluxation or lateral instability, with slight disability. A 20 percent evaluation is provided where there is moderate disability, and a 30 percent evaluation where there is severe disability. The only post service clinical evidence referable to the left knee, consists of the report of VA examination conducted in August 1990. On that examination the veteran complained of pain in both, knees which was worse on the right. He reported that he experienced frequent dislocations of the left patella, and that his left patella had dislocated several days previously. He was noted to have hyperex-tension of the left knee, and to have a left patella which freely dislocated. An X-ray examination showed subchondral sclerosis with no evidence of osteophyte formation. The examiner recommended that the veteran not engage in vigorous activity. In the Board's opinion, the frequent patellar dislocations, complaints of pain, hyperextension, and X-ray findings are indicative of moderate disability. Therefore a 20 percent evaluation is warranted for that disability under the provisions of Diagnostic Code 5257. The Board does not find evidence of a severe disability such as to warrant a 30 percent evaluation. In this regard the Board notes that the veteran has not reported any post-service treatment for this disability, and was found to have a normal gait on VA neurologic examination, thereby suggesting the absence of severe limitation of motion or instability. IV. Right Knee Disability The veteran underwent a right patellar realignment and tubercle transfer at a private facility in December 1989. On medical evaluation board examination later in December 1989, the veteran had a dressing at the site of the surgery. His range of motion was from 0 to 40 degrees. Further testing was not conducted because of the surgical procedures. The diagnoses included severe right knee chondromalacia following patellar realignment and tibial tubercle transfer. This disability was evaluated by the physical evaluation board as warranting a 30 percent evaluation under Diagnostic Code 5257. In March 1990, the veteran was evaluated at a private facility, when it was reported that he had a full range of motion in the right knee. On VA the VA examination in August 1990, the veteran reported that he had not experienced right patellar dislocation since his surgery. He did report some pain. On examination the patella was stable and it was reported that the range of motion was within "satisfactory limits." An X-ray examination was interpreted as showing evidence of the surgery, "mild evidence of degenerative joint disease" consisting of an osteophyte, and some chondrosclerosis. The relevant diagnoses were bilateral patellar instability with the right side treated and residuals of patellar realignment procedure of the right knee. In July 1991, a private physician reported that the veteran's right knee was asymptomatic, in that he no longer had pain or dislocations. The examiner expressed the opinion that the veteran could return to any type of work. In January 1992, the examiner reported that the veteran had undergone surgical removal of screws left in right tibia after the previous surgery in service. Following the surgery, the veteran was reported to be doing well with a "good" range of motion. Although the most recent reports from his private physician suggest that the veteran's right knee disability is minimal, the findings on the VA examination included hyperextension, and abnormal X-ray findings, including minimal degenerative changes. The veteran also needed recent surgery for removal of hardware from the prior hospitalization. In the Board's opinion these findings are indicative of slight disability, which warrants a 10 percent evaluation under the provisions of Diagnostic Code 5257. Since he does not currently experience instability, any reported limitation of motion, or significant pain, the Board cannot conclude that a 20 percent evaluation is warranted. The Board has noted that veteran's contentions with regard to the fact that the service department found his right knee disability to be severely disabling and warranting a 30 percent evaluation. However, that evaluation was made shortly after he had undergone surgery, and was based on findings that he ambulated with crutches and had a very limited range of motion. The clinical findings since service show a normal range of motion in the right knee and a normal gait without the reported need for crutches. The Board cannot find that his current disability meets or approximates the criteria for a moderate disability, let alone the criteria for a severe disability. V. Hearing Loss Disability Service connection for bilateral sensorineural hearing loss disability, has been in effect at a noncompensable level since the day after separation from service in April 1990. Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from bilateral service-connected defective hearing, the revised rating schedule establishes eleven auditory acuity levels designated from level I for essentially normal acuity through level XI for profound deafness. 38 C.F.R. §§ 4.85 and Part 4, Diagnostic Codes 6100 to 6110 (1993). On the authorized audiological evaluation in August 1990, pure tone thresholds, in decibels, were as follows: Hertz 1,000 2,000 3,000 4,000 Average Right 0 0 35 45 20 Left 15 10 60 55 35 Speech audiometry revealed speech recognition ability of 94 percent in the right ear and of 94 percent in the left ear. These results equate to level I hearing loss in the right ear and level I hearing loss in the left ear. Under the provisions of Diagnostic Code 6100, such hearing loss warrants a noncompensable evaluation. Although the veteran has reported a number of subjective complaints, and difficulty communicating with others, the rating schedule recognizes his hearing loss disability only as noncompensable. There is no evidence that his hearing loss disability has had a marked impact on his employment or required hospitalization so as to warrant an extra-schedular rating under the provisions of 38 C.F.R. § 3.321, discussed below. VI. General Considerations Regarding Increased Rating Claims In reaching its conclusions in this case the Board has considered all of the provisions of Chapters 3 and 4 of 38 C.F.R. (1993). The Board has specifically considered the provisions of 38 C.F.R. § 3.321, pertaining to extra-schedular evaluations. However, the veteran's disabilities have not required frequent periods of hospitalization, or been shown to markedly interfere with employment, beyond the level contemplated by his current schedular evaluations. Accordingly, the Board has found that his disability picture, is not so unusual as to render impractical the application of the regular schedular criteria. The Board has also considered the provisions of 38 C.F.R. § 4.7, which provides for assignment of the next higher evaluation where the disability picture more closely approximates the criteria for the next higher evaluation. As discussed above, the veteran's disabilities do not more closely approximate the criteria for the next higher evaluations. The Board has also considered the provisions of 38 C.F.R. 4.40 and 4.59 as the may apply to the evaluation of his knee disabilities. The Board has taken into consideration functional loss and painful motion in evaluating those disabilities. The Board has been unable to find a basis under any other regulation, which would permit the allowance of an increased rating for the veteran's service connected disabilities, beyond those granted in this decision. ORDER Having failed to submit evidence that they are well grounded, the veteran's claims for service connection for residuals of rib fractures, and an eye disability are dismissed. A 20 percent evaluation for chondromalacia of the left knee, and a 10 percent evaluation for residuals of realignment of the right knee, with removal of screws from the right femur are granted, subject to the laws and regulations governing the payment of monetary awards. An increased (compensable) rating for bilateral hearing loss disability is denied. LAWRENCE M. SULLIVAN 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.