BVA9500301 DOCKET NO. 92-22 962 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to service connection for the residuals of a left knee injury. 2. Entitlement to service connection for left ear hearing loss. 3. Entitlement to service connection for right ear hearing loss. 4. Entitlement to an increased (compensable) evaluation for the residuals of a sprained right wrist. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his father ATTORNEY FOR THE BOARD Grace H. Jivens-McRae, Counsel INTRODUCTION The appellant was a New Mexico Air National Guard Reservist with multiple periods of active duty for training and inactive duty for training between July l983 and July 1990. The applicable criteria provide that active military, naval, and air service includes a period of active duty for training during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty. 38 C.F.R. § 3.6(a). Due to the fact that service connection was granted for a skin disability based on its incurrence during a period of active duty for training from January l2, l984 to March 30, l984, this period of active duty for training converted to active service. Also, due to the fact that service connection was granted for residuals of a wrist injury during a period of active duty for training from January 19, l988 to February 2, l988, this period also converted to active service. This appeal arises from an August 1991 rating decision of the Albuquerque, New Mexico, Department of Veterans Affairs (VA) Regional Office (RO). In that decision, service connection was granted for the residuals of a sprained right wrist with a noncompensable evaluation granted effective February 1991. Service connection was denied for the residuals of a strained left knee, bilateral hearing loss, and hyperkeratotic palmar dermatitis. A personal hearing before a hearing officer at the RO was held in January 1992. Pursuant to the hearing officer's decision at that time, service connection was granted for hyperkeratotic palmar dermatitis of both hands with a 30 percent evaluation granted from February 1991 and denial of service connection for left knee strain and bilateral hearing loss was confirmed and continued. The appellant disagrees with the denial of service connection for the residuals of a strained left knee, bilateral hearing loss and the assignment of a noncompensable evaluation for the residuals of a sprained right wrist. CONTENTIONS OF APPELLANT ON APPEAL The appellant and his representative contend, in essence, that the appellant's residuals of a sprained right wrist are more severe than the current evaluation reflects. The appellant also claims that service connection is warranted for the residuals of a strained left knee and hearing loss of the left and right ear based on incurrence during military service. 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 appellant'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 preponderance of the evidence is against a grant of service connection for left hearing loss and the evidence supports a grant of a compensable evaluation for the residuals of a sprained right wrist. It is further the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims as to service connection for a left knee disability and right hearing loss are well grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. Service medical records and VA and private treatment records after service do not show that the appellant has residuals of a left knee injury. 3. The appellant's claim for service connection for a left knee disability is not plausible. 4. The appellant does not have right ear hearing loss. 5. The appellant's claim for service connection for a hearing loss of the right ear is not plausible. 7. The appellant had left ear hearing loss prior to his entrance into the military. 8. There was no increase in the underlying preexisting left ear hearing loss during any period of active duty, active duty for training or inactive duty for training. 9. The appellant's service-connected right wrist disability is productive of pain on motion. CONCLUSIONS OF LAW 1. The appellant has not submitted a well-grounded claim for service connection for a left knee injury. 38 U.S.C.A. § 5107 (West 1991). 2. The appellant has not submitted a well-grounded claim for service connection for right ear hearing loss. 38 U.S.C.A. § 5107 (West 1991). 3. Hearing loss of the left ear was present prior the veteran's entrance into National Guard Service and was not aggravated by service. 38 U.S.C.A. §§ 101(22), 1131, 5107 (West 1991); 38 C.F.R. § 3.385 (1993). 4. A 10 percent evaluation is warranted for the residuals of a sprained right wrist. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. 3.321(b), Part 4, 4.1, 4.2, 4.7, 4.40, 4.59, Diagnostic Code 5215 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to Service Connection for the Residuals of a Left Knee Injury The threshold question as to the issue of entitlement to service connection for the residuals of a left knee injury is whether the appellant has presented evidence of a well-grounded claim; that is one that is plausible. If not, the appeal must fail and there is no duty to assist him further in the development of his claim as such additional development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990); Tirpak v. Derwinski, 2 Vet.App. 609 (1992). For the reasons discussed below, the Board finds that the appellant's claim is not well grounded. The appellant had active duty for training from January 12, l984 to March 30, l984. As noted in the Introduction section of this decision, this converted into active service. Service medical records show that the appellant was seen complaining of left knee pain in February 1984. Objective findings included pain in the left distal thigh. The assessment was left knee strain, and it was recommended that the strain be treated with rest. Three days later, he was seen again complaining of a painful left knee. X-ray examination was negative for fracture. The assessment was left leg trauma. He was placed on crutches for two days. Two days later, he was seen for follow-up of his left knee strain. He indicated that it felt better but that he was still in pain. The examination remained unchanged. He was instructed to discontinue his crutches, continue his medication and increase activity. Two days later, he was seen again with complaints of left knee pain. It was noted that he suffered a valgus stress of the left knee while coming downstairs one week prior to the examination. He noted intermittent ache of the left knee since that time. He also stated that, prior to his knee strain, he was able to run 1 mile without difficulty. Physical examination was negative for ecchymosis, effusion, Lachman's sign and valgus instability. Examination was positive for tenderness over the medial joint line, valgus stress and patellofemoral pain with compression. There was full range of motion noted with some patellar crepitus. The assessment was mild left knee medial collateral ligament sprain resolving and left patellofemoral arthralgia. The examiner informed the appellant to resume training as tolerated in four days, perform straight leg raising and return to the clinic for a two-week waiver if symptoms returned. There were no other complaints, findings, or diagnoses of left knee pain during the appellant's additional multiple periods of service. In February 1990, he was evaluated before a medical evaluation board for an unrelated disability. He made no complaints related to his left knee. The lower extremities were reported to be normal on examination. In January l991, the appellant filed a claim for service connection for disabilities, including a strained left knee incurred in February l984. He underwent a VA examination for compensation and pension purposes in April 1991. He stated that he injured his left knee when he fell down stairs in basic training in 1984. He still complained of intermittent pain 3 or 4 times a week, particularly aggravated by walking, standing, or kneeling. There was no history of fracture and he had no surgery on the knee. Physical examination of the left knee revealed a full range of motion with no signs of instability. Drawer sign was negative. His right thigh was 20 1/2 inches and his left thigh was 20 inches. At the time of the examination, he was able to do deep knee bends, accomplished to 180 degrees. The appellant did not report for x-rays, and a diagnosis was not rendered. In l992, private outpatient treatment records dated from February 1989 to April 1989 were unrelated to the appellant's left knee. In January 1992, he had a personal hearing before a hearing officer at the RO. He provided no testimony on his left knee complaints. Under applicable criteria, a determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. See 38 U.S.C.A. § 1131 (West 1991); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). A review of the medical evidence shows that there is no evidence post service establishing the presence of a chronic knee disability. In fact, the only post service medical evidence relating to the appellant's left knee is a VA examination of April 1991 which showed full range of motion with no instability. A diagnosis was not rendered at that time because the appellant did not report to take the x-rays which had been scheduled. In this regard, the duty to assist is not always a one-way street. If an appellant wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet.App. 190 (1991). In the absence of evidence showing the presence of a disability, there is no basis to award service connection. The claim is not plausible and, therefore, not well grounded. See Rabideau, 2 Vet.App. 141. II. Entitlement to Service Connection for Right Ear Hearing Loss At the outset, the Board must determine whether the appellant's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, has he presented a claim which is plausible? If not, the appeal must fail and there is no further duty to assist in the development of his claim as additional development would be futile. See Murphy, 1 Vet.App. 78; Tirpak, 2 Vet.App. 609. The Board finds that the appellant's claim as to right ear hearing loss is not well grounded. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, and 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385 (1993).(Regulation revised effective December 27, l994. This revision did not constitute a substantive change to the regulation in effect immediately prior thereto). In this case, the appellant's service medical records do not document the presence of a right ear hearing loss in service. Audiograms in service did not show any of the frequencies of 500, l000, 2000, 3000 and 4000 Hertz to be 26 decibels or greater. Audiological testing conducted upon VA examination in April 1991 produced the following pure tone thresholds (in decibels) for the right ear: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 20 20 LEFT The Maryland CNC speech discrimination test was performed. Speech recognition of the right ear was 94 percent. The examiner indicated that right ear hearing was within normal limits by VA definition. Absent current right ear hearing loss, the Board concludes that the appellant has not met the initial burden of presenting evidence of a well-grounded claim imposed by 38 U.S.C.A. § 5107(a). III. Entitlement to Service Connection for Left Ear Hearing Loss The appellant's claim for service connection for left ear hearing loss is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the Board finds that he has presented a plausible claim. All available service medical records, VA examination reports and private medical records have been obtained and associated with the claims folder. The appellant was afforded a personal hearing before a hearing officer at the RO in January 1992. The record is complete; VA has fulfilled its duty to assist the appellant in the development of his claim as mandated by 38 U.S.C.A. § 5107(a). Under applicable criteria, service connection will be granted for disability resulting from disease or injury incurred in or aggravated while performing active duty for training or injury incurred or aggravated while performing inactive duty training. 38 U. S.C.A. § 101(24), 106, 1131. Service connection will also be granted for disability incurred in or aggravated during active peacetime service. 38 U.S.C.A. § 113l. For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, and 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC test are less than 94 percent. 38 C.F.R. § 3.385 (1993). (Regulation revised effective December 27, l994. This revision did not constitute a substantive change to the regulation in effect immediately prior thereto). Prior to entrance into service and while a civilian, the appellant was examined by the service department in October 1983. He exhibited elevated pure tone thresholds at 4,000 hertz of 45 decibels. The appellant's first period of service was inactive duty for training from December 3 and 4, l983. During a periodic examination in November 1986, pure tone thresholds at 4,000 hertz remained at 45 decibels. This examination was done during a period of active duty for training from November 1 to 2, l986. A diagnosis of bilateral moderate pan-frequency hearing loss was made. On March 6, 1988 (during a period of inactive duty for training), he underwent an audiogram which revealed pure tone thresholds at 4,000 hertz elevated to 60 decibels. Reference was made to the fact that this audiogram was taken following exposure to noise duties. At a medical board examination on February l4, 1990, the appellant's pure tone threshold at 4,000 hertz was again noted to be 45 decibels. This examination was not done during a period of active service, active duty for training or inactive duty for training. All military audiograms revealed pure tone thresholds for all other pertinent frequencies (i.e., those necessary to meet the criteria of 38 C.F.R. § 3.385--500 through 3,000 hertz) to be in the normal range, 25 decibels or less. His last period of service was in July l990. The appellant underwent a VA audiometric examination for compensation and pension purposes in April 1991. Pure tone thresholds were in the normal range for all pertinent frequencies except 4,000 hertz. Pure tone thresholds at 4,000 hertz were elevated to 50 decibels. The examiner noted moderate sensorineural hearing loss above 3,000 hertz. The appellant was noted to have hearing loss according to VA standards in the left ear at an examination conducted by the military service prior to his entrance into service. This establishes that hearing loss was present prior to any period of service. While he was exposed to noise during a period of inactive duty for training in l988 and his hearing loss appeared to worsen as shown on audiogram following that exposure, the evidence does not establish that the increase in severity of his hearing loss was more than acute and transitory. This is shown by the fact that at the medical board examination in February l990, his hearing was exactly the same as that noted on examination prior to entrance into service in l983. Temporary or intermittent flareups during service of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying condition, as contrasted to symptoms, is worsened. Jensen v. Brown, 4 Vet.App. 304 (1993). While there may have been an increase in hearing loss noted at a VA examination in April l991, no evidence has been submitted establishing that any increase in severity noted at that time was attributable to aggravation of the preexisting hearing loss during service. IV. Entitlement to an Increased (Compensable) Evaluation for the Residuals of a Sprained Right Wrist The Board finds the appellant's claim to entitlement to an increased (compensable) evaluation for the residuals of a sprained right wrist to be well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed, and that there is no further development required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a) (West 1991). Service connection is in effect for the residuals of a sprained right wrist. A noncompensable evaluation has been assigned for this disability under the provisions of Diagnostic Code 5215 of the VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4. Service connection was established for residuals of a sprained right wrist by rating decision of August 1991. A noncompensable evaluation was assigned effective February 1991. The appellant continues to maintain a noncompensable evaluation to the present. Disability evaluations are determined by the application of a schedule of ratings 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. The provisions of 38 C.F.R. § 4.1 require that each disability be viewed in relation to its history and that there be emphasis upon the limitation of activity imposed by the disabling condition. The provisions of 38 C.F.R. § 4.2 require that medical reports be interpreted in light of the whole recorded history and that each disability be considered from the point of view of the appellant working or seeking work. The provisions of 38 C.F.R. § 4.40 requires consideration of functional disability due to pain. The provisions of 38 C.F.R. § 4.59 note that it is the intent of the Schedule to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints due to healed injuries as entitled to at least the minimum compensable rating for the joint. The requirements for evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decisions based on a single incomplete or inaccurate report and to enable VA to make a more precise evaluation of the level of the disability and of any changes in the condition. Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Moreover, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Under Diagnostic Code 5215, a 10 percent evaluation is warranted for the residuals of a wrist sprain when there is limitation of motion with palmar flexion limited in line with the forearm or dorsiflexion less than 15 degrees. Where the minimum schedular evaluation requires residuals and the schedule does not provide a no percent evaluation, (as is the case here) a no percent evaluation will be assigned when the required residuals are not shown. 38 C.F.R. § 4.31. In April 1991, the appellant was examined by the VA. He gave a history of a sprained right wrist that he injured when he fell in 1988. He complained that his wrist was painful on active movement such as push-ups and that he may feel pain 2 to 3 times a week. Otherwise, he did not have symptoms. Physical examination revealed full range of motion of the right wrist with pain developed on hyperextension. A diagnosis was not rendered as the appellant did not report for x-rays which were scheduled. As noted earlier in this decision, the veteran must cooperate in obtaining information within his control. Wood v. Derwinski, 1 Vet.App. 190 (1991). The appellant's residuals of a right wrist sprain are currently evaluated as noncompensable. In order to warrant a compensable evaluation, the evidence must show limitation of motion. Additionally, as previously stated, 38 C.F.R. § 4.59 indicates, in pertinent part, that it is the intent of the schedule to recognize painful motion with joint or periarticular pathology as productive of disability entitled to at least the minimum compensable rating for the joint. The minimum compensable evaluation for residuals of a right wrist sprain is 10 percent, if productive of limitation of motion. Although the appellant's right wrist sprain is not productive of limitation of motion, it does warrant a 10 percent evaluation pursuant to the provisions of 38 C.F.R. § 4.59 for painful motion. This is evidenced by the painful motion exhibited on VA examination in April 1991. Accordingly, the totality of the evidence more nearly approximates the criteria for a 10 percent rating due to functional disability resulting from pain. However, his disability does not require frequent hospitalization or interfere with his employment to such an extent justifying an extraschedular evaluation. 38 C.F.R. § 3.321 (1993). During his most recent VA examination, he noted that, although he had pain on hyperextension 2 to 3 times a week, he does not have other symptoms. Further, the need for frequent periods of hospitalization due to his right wrist sprain has not been demonstrated. Therefore, an evaluation greater than 10 percent based on an extraschedular basis is not warranted. ORDER The appeal as to entitlement to service connection for the residuals of a left knee injury is dismissed. The appeal as to entitlement to service connection for right ear hearing loss is dismissed. Entitlement to service connection for left ear hearing loss is denied. Entitlement to a 10 percent evaluation for the residuals of a sprained right wrist is granted, subject to the laws and regulations governing the effective dates of awards. I. S. SHERMAN 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.