BVA9501586 DOCKET NO. 93-09 107 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a left knee disorder characterized as internal derangement with synovitis. 2. Entitlement to service connection for a right knee disorder. 3. Entitlement to service connection for a bilateral ankle disorder. 4. Entitlement to service connection for bilateral pes planus. 5. Entitlement to service connection for bilateral hallux valgus. 6. Entitlement to an increased (compensable) evaluation for residuals, fractured left 6th rib. 7. Entitlement to an increased (compensable) evaluation for residuals of a head laceration. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active duty for training from April 5, 1990 to June 20, 1990, and active service from November 21, 1990 to July 9, 1991. This appeal is from the rating action by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, in October 1992. In that rating action, the RO also considered the veteran's claim for service connection for a back disorder, finding that evidence did not demonstrate a back disorder in or since service. However, the notice of that rating action sent to the veteran did not specifically mention a back disorder. Nevertheless, in his Notice of Disagreement, the veteran stated that he wished to appeal "the findings on my application for disability." Although the back issue was referred to briefly, it was not discussed in the "decision" portion or otherwise included in the subsequent Statement of the Case. The veteran mentioned the back issue in his Substantive Appeal, but it was not noted in an April 1993 rating decision nor was it certified as an appellate issue to the Board. Inasmuch as the veteran timely expressed his disagreement with the RO decision on that issue, it is referred to the RO for appropriate action. While cited in one recent rating action, the issue of entitlement to a compensable rating based on the provisions of 38 C.F.R. § 3.324 was not included in the subsequent Statement of the Case, and is referred back to the RO for appropriate review as required. CONTENTIONS OF APPELLANT ON APPEAL In substance, the veteran argues that his rib causes him problems when he has to lift or twist on the job and that the scar on his scalp has caused noticeable hair loss. In his VA Form 9 in March 1993, the veteran argued that his feet and ankles were aggravated by service, and that he cannot lift well because of his knees. 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 evidence is in equipoise in the veteran's claim for service connection for a left knee disorder characterized as internal derangement with synovitis, and that with resolution of doubt in his favor, service connection is warranted; that the veteran's claim for service connection for a right knee disorder, for a bilateral ankle disorder, and for bilateral hallux valgus, is not well-grounded; and that the preponderance of the evidence is against his claim for service connection for bilateral pes planus and for increased (compensable) evaluations for residuals, fractured left 6th rib, and residuals of a head laceration. FINDINGS OF FACT 1. A left knee disorder was not demonstrated prior to service; the veteran's current left knee disorder characterized as internal derangement with synovitis is reasonably attributable to a left knee injury in service. 2. There is no evidence or medical opinion that a right knee disorder, a bilateral ankle disorder or bilateral hallux valgus is of service origin or related to service. 3. Moderate pes planus was noted on the veteran's Army Reserve examination in March 1986, and asymptomatic pes planus was again noted on a physical examination in March 1990. 4. Mild asymptomatic pes planus was shown on an examination in May 1991, shortly before the veteran's completion of active service. 5. There is no medical evidence that pes planus was symptomatic during service or that it increased in degree during or as a result of service. 6. Residuals of a head laceration are no more than slight; the 3" scar is barely perceptible in the hairline, is not disfiguring, ulcerated, adherent, painful or tender and causes no functional impairment. 7. Residuals of left 6th rib fracture are manifested by subjective complaints of chest pain on certain movements, not confirmed on examintion; there is no respiratory impairment and findings are not tantamount to rib resection or removal. 8. The current manifestations of the veteran's residuals of a head laceration and left 6th rib fracture do not more nearly approximate the criteria for a higher evaluation, do not present an unusual disability picture and do not cause marked interference with employment or require frequent periods of hospitalization. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for a right knee disorder, for a bilateral ankle disorder, and for bilateral hallux valgus, is not well-grounded. 38 U.S.C.A. § 5107 (West 1991). 2. Pes planus pre-existed service and was not aggravated in service. 38 U.S.C.A. §§ 101(24), 106, 1110, 1153, 5107 (West 1991); 38 C.F.R. §§ 3.1, 3.2(i), 3.6, 3.306 (1993). 3. A left knee disorder characterized as internal derangement with synovitis, was incurred in service. 38 U.S.C.A. §§ 101(24), 106, 1110, 5107; 38 C.F.R. §§ 3.1, 3.2(i), 3.6, 3.303 (1993). 4. An increased (compensable) evaluation for residuals , fractured left 6th rib, is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.7, 4.20, 4.31, 4.59, Diagnostic Code 5299-5297 (1993). 5. An increased (compensable) evaluation for residuals, head laceration, is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 3.321(b)(1), Part 4, §§ 4.7, 4.31, Diagnostic Code 7800 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Well-grounded Claims Pursuant to 38 U.S.C.A. § 5107(a), a person who submits a claim for benefits under a law administered by the Secretary shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. The United States Court of Veterans Appeals (Court) has held that a well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In Boeck v. Brown, 6 Vet.App. 14 (1993), the Court held that A(n appellant) claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107, and see Tirpak v. Derwinski, 2 Vet. App. 609, 610-11(1992). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5). Service Connection: General Service connection may be granted for disability as a result of disease or injury incurred in or aggravated during active duty or active duty for training or injury while performing inactive duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.1, 3.2(i), 3.6. Service connection connotes many factors but basically it means that the facts, as shown by the evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. 38 C.F.R. § 3.303(a). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Left Knee Disorder In keeping with the provisions of 38 U.S.C.A. § 5107, the Board finds that the veteran's claim in regard to a left knee disorder is well-grounded. The Board is also satisfied that sufficient evidence is of record to make an equitable disposition, and that the VA has met is obligation to assist the veteran in the development of his claim in that regard. Id. The Board finds no documented preservice history or evidence of a left knee disorder, and such a disorder was not noted on physical examinations (for the Army Reserve) in March 1986 and March 1990. Service medical records show that on April 19, 1990, while on active duty for training, the veteran was seen with complaints of left knee pain over the past two days. The veteran reported that he had stepped in a hole and twisted the knee while running, after which the knee became puffy on the lateral side and popped when he walked. He was seen on subsequent occasions with similar complaints. Although a history of his having been in a motor vehicle accident 6 years before was noted, there was no specific reference to his having injured his left knee in that accident. During April and May 1990, an exercise program for quadriceps strengthening and ligament stretching was instituted, and he was told to use aspirin and moist heat for pain. The IT band was tight. He returned with complaints that there was no improvement and the pain in the lateral aspect of the left knee had become worse; examination showed signs of patellar entrapment and crepitus and pain on flexion. X-rays were normal. He was placed on a limited profile and told to use ice. He was sent to physical therapy, where, on examination, there was tenderness to palpation of the left knee, both laterally and medially. It was the examiner's assessment that he had grade I laxity of the medial collateral ligament. He was placed on a regime that included using a bicycle, but it was later noted that he was unable to use this fully because of his specific duty assignments. On May 17, 1990, there was some noted loosening of the IT, but he had continued complaints of grinding with a burning shocking sensation. On May 29, 1990, the veteran said he was better but still had tightness in the IT and hamstrings. Therapy was continued. Service medical records, including from his subsequent period of active service, make no further reference to his left knee. On a VA examination in September 1992, the veteran noted that he had had no left knee problems until he injured the knee in service in May "1991." Since then he had had pain, particularly on bending or twisting. On examination, active knee movement showed flexion/extension on the right of 132 degrees and 136 degrees on the left. There were no significant functional abnormalities except for some apparent stress in the ligamentous structures. X-rays showed a slight synovial thickening and effusion of the left knee with slight thinning of the articular cartilages of the medial aspect of the left knee. The examiner diagnosed internal derangement of the left knee with chronic synovitis. The Board notes that the RO denied the veteran's claim relating to his left knee disorder on the basis that it pre-existed service and was not aggravated therein. However, that conclusion is not sustainable. The only reference to preservice injury in the file was the history of his having been in a motor vehicle accident prior to service, which was recorded at the time of treatment for his service left knee injury. While that history could be construed as indicating a preservice knee injury, the weight of the evidence indicates that any such injury had resolved prior to the period of active duty for training, since the March 1986 and March 1990 Reserve physicals were negative for any knee abnormalities and the veteran denied a history of trick or locked knee, joint deformity, etc. Since the objective evidence of record does not establish any chronic left knee disability prior to the 1990 period of active duty for training or any left injury other than that experienced in service, the post-service confirmation of the presence of an identifiable residual left knee disorder can be reasonably attributed to the inservice injury. Even though the veteran neither complained of, nor was found to have a left knee disorder during his active service, the evidence is in equipoise as to whether the post- service disorder is related to the disorder noted during active duty for training. Accordingly, the Board finds that, giving the veteran the benefit of doubt, service connection is warranted for the veteran's current left knee disability. Pes Planus As noted above, a well-grounded claim is one which is meritorious on its own or capable of substantiation. In regard to the claim for service connection for pes planus, the Board finds that the veteran's claim is well-grounded. The Board further finds that sufficient evidence is in the file to make an equitable disposition of that issue, and the VA's obligation to assist in the development of the evidence has been satisfied. 38 U.S.C.A. § 5107. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service. This includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a), (b). On examination in March 1986 for the Army Reserve, "moderate" pes planus was noted by the examiner; "asymptomatic" pes planus was shown on a physical examination in March 1990, prior to active duty for training. Service records show no evidence of the veteran having had problems with his flat feet or that he experienced any disease or injury which might have served to aggravate or alter the basic pathology of the pre-existing pes planus. On a redeployment physical examination in May 1991, shortly before the veteran's release from active duty, "mild pes planus, asymptomatic" was noted. This suggests that the status of the pes planus may have even improved inasmuch as it was considered to be "moderate" in March 1986. Accordingly, the service medical records show no increase in the pre-existing pes planus coincident with service. On the September 1992 VA examination, the veteran was found to have bilateral pes planus. However, there is no evidence or medical opinion to support his contention that his pre-existing pes planus was aggravated in service. According to the VA examination report, the veteran had foot pain after his discharge from service and was found to have flat feet. The examiner provided no opinion that pes planus increased in disability during the veteran's service and there is no other evidence showing increased disability. Therefore, service connection is not warranted. Right Knee and Bilateral Ankle Disorders and Bilateral Hallux Valgus The veteran has claimed that an ankle disorder, a right knee disorder and bilateral hallux valgus are service related. According to the veteran's service medical records, none of these disorders was shown on examinations in March 1986 and March 1990 or in the veteran's other service medical records. In May 1990, the veteran complained of pain in his ankles which appeared to be related to limping from his left knee disability, and from which there were no residuals thereafter noted in service. A physical examination in May 1991, shortly before he completed active duty, showed no evidence of an ankle disorder, hallux valgus or a right knee disorder. On a VA examination in September 1992, the veteran said that after separation from service, he was found to have pain in his feet and was determined to have flat feet with his ankles turning in. He was said to wear shoes erratically and had pain on standing or walking distances and after walking 1 mile. On examination, the left ankle appeared overtly normal; he was said to favor his left knee. There was no apparent soft tissue swelling of the knees, but the examiner described stress in the ligamentous structures. There was some soft tissue swelling of the right ankle and bony hypertrophy of the lateral malleolar area. Weight bearing active motions were found to be normal. Non-weight bearing movements were reported as right ankle dorsiflexion to 8 degrees compared to 9 degrees on the left; plantar flexion on the right was 39 degrees, and on the left, 37 degrees. During squatting and standing on his toes, there was asymmetrical delay of the left ankle on dorsiflexion and plantar flexion. Knee motions are described above. Pulses were unremarkable. X-rays of the ankles showed mild hallux valgus, bilaterally. Pertinent diagnoses were bilateral hallux valgus deformity and bilateral pes planus. While the veteran argues that he has service-related right knee, bilateral ankle and bilateral hallux valgus disorders, there is no evidence or medical opinion to support his contention. A right knee disorder was not shown in service and, although some right knee complaints were noted on the VA examination in 1992, the examiner did not diagnose a right knee disorder. The veteran has submitted no medical evidence establishing that he has a right knee disorder or than any such disorder, if present , is related to service. Further, there is no medical evidence associating the veteran's bilateral hallux valgus with service. Finally, there is no medical evidence showing that the veteran had a chronic ankle disorder in service or that any current ankle abnormalities are of service origin or otherwise related to service. Accordingly, the Board finds that the veteran's claim for service connection for these disorders is not well-grounded and therefore must be dismissed. 38 U.S.C.A §§ 101, 106, 1110, 5107(a), 7105. If the veteran were to submit medical evidence (such as an opinion) relating these disorders to service, his claim in this regard might be considered well grounded. Robinette v. Brown, No. 93-985 (U.S. Vet. App. Oct. 21, 1994). Increased Evaluations In claims for increased disability ratings, the Court has found that, within the confines of certain parameters, the allegation by a veteran that he has increased disability tends to establish a well-grounded claim. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board is satisfied that adequate evidence is of record to reach an equitable disposition of the issues relating to increased evaluations in this case. In general, disability evaluations are determined by the application of a schedule of earnings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origins. 38 C.F.R. § 4.20. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the minimum schedular evaluations requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1). The Board has also considered all of the facets of the disorders including alternative provisions which may be applicable pursuant to Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Residuals, Head Laceration In service, the veteran struck his head on a locker in November 1990. A 6 cm. laceration of the right frontal area was sutured. No functional or cosmetic damage to the head or face was recorded, and no residuals were thereafter noted in service. At the time of an examination in May 1991, the veteran reported the incident and said he had had 6-7 sutures; no residuals were shown. On a VA examination in September 1992, the veteran said that he had had 9 sutures to his head in service, but did not identify any particular sequelae from the injury. On examination, the examiner found a 3" linear scar which was difficult to see in the hair on the right frontal area. There is no medical evidence to support the veteran's contention that the scar has precipitated significant hair loss or any other functional disability. On the VA examination, the scar was not noted to be painful, tender or otherwise symptomatic and loss of hair associated with the scar was not reported. In evaluating disfiguring scars of the head, face or neck, a zero percent rating is assignable when slight; a 10 percent rating is assignable when moderate, disfiguring. A 30 percent rating is assignable when severe, especially if producing a marked and unsightly deformity of the eyelids, lips or auricles. 38 C.F.R. Part 4, Diagnostic Code 7800. A 10 percent rating also is assignable when a superficial scar is poorly nourished with repeated ulceration (Diagnostic Code 7803), or for a superficial scar which is painful and tender on objective demonstration (Diagnostic Code 7804). In this case, the 1992 VA examination showed a minimal scar at the right hairline which was not disfiguring; the scar is not adherent, poorly nourished, painful or tender, and it does not otherwise cause functional limitation. Absent any identifiable impairment, a compensable rating is not warranted. The veteran's scar does not more nearly approximate the criteria for a higher evaluation pursuant to 38 C.F.R. § 4.7, and it is not shown to cause interference with employment, require medical treatment or to otherwise present an unusual disability picture as required for an extraschedular compensable evaluation. 38 C.F.R. § 3.321(b)(1). Residuals, Fractured Left 6th Rib In service, the veteran complained in January 1991 of chest pain, congestion and an inability to sleep due to pain, particularly in his left side. His respiratory discomfort was attributed to infection, later described as pneumonia, which cleared without residuals and which was apparently unrelated to an incidental finding on an X-ray at that time which showed an apparent fracture of the left 6th rib, probably due to a prior football injury. When he was examined in May 1991, shortly prior to completion of active duty, a history of the rib fracture was noted but the examination showed no pertinent abnormalities or defects and a chest X-ray of June 1991 was reported to be negative. On a VA examination in September 1992, the veteran said he had pain in the left chest when he twisted or would bend or take a deep breath. However, resisted isometric movement revealed no pain on flexion, extension or rotation of the trunk. There is no history or clinical finding of any respiratory disability from the rib fracture, and there is no objective evidence of functional impairment. There are only subjective complaints of chest pain on some motions. In evaluating residuals of the rib fracture, the RO has compared the disability to rib removal, where a 10 percent rating is assignable when there is removal of one or resection of two or more ribs without regeneration. 38 C.F.R. Part 4, Diagnostic Code 5297. However, the single rib fracture does not approximate the actual removal of a rib or resection of multiple ribs without regeneration of the bone. The disability might also be rated, by analogy, as fibrous pleurisy which is considered a nondisabling condition except when there is diaphragmatic pleurisy, with obliteration of the costophrenic angles, chest pain and tenting of the diaphragm. 38 C.F.R. Part 4, Diagnostic Code 6810. In this case, there is no evidence of respiratory impairment of any kind, and no findings equivalent to diaphragmatic pleurisy with costophrenic angle obliteration and tenting of the diaphragm. In reaching the above conclusions, consideration has been given to the fact that no rib or respiratory abnormalities were noted on the service discharge examination or the subsequent service chest X-ray. Also, there was no pain on motion of the trunk during the VA examination, even though the veteran has indicated that certain movements of his body cause pain. The provisions of 38 C.F.R. § 4.59, regarding arthritis/painful joints, are not applicable in this case inasmuch as the veteran's fractured rib does not involve arthritis or a joint. Also, the disorder is not shown to more closely approximate the requirements for a compensable rating under either of the diagnostic codes discussed above. 38 C.F.R. § 4.7. Finally, it is not shown to present an unusual disability picture with such factors as marked interference with employment or the need for frequent periods of hospitalization. In fact, there is no showing that it has required any medical attention since the veteran's discharge from service. Therefore, an extraschedular rating is not warranted. 38 C.F.R. § 3.321(b)(1). ORDER Service connection for a left knee disorder characterized as internal derangement with synovitis is granted. The veteran's claim for service connection for a right knee disorder, bilateral ankle disorder, and bilateral hallux valgus is dismissed. The veteran's claim for service connection for bilateral pes planus is denied. Increased (compensable) evaluations for residuals, fractured left 6th rib, and residuals of head lacerations are denied. JANE E. SHARP 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.