BVA9505641 DOCKET NO. 93-00 651 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a chronic acquired disorder manifested by headaches, secondary to service-connected status post fractures of L1-L2, with pain and limitation of motion. 2. Entitlement to service connection for a cervical spine disorder. 3. Entitlement to an increased evaluation for status post fracture of L1-L2, with pain and limitation of motion, currently evaluated as 20 percent disabling. 4. Entitlement to an increased evaluation for status post right knee surgery, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from May 1982 to May 1988. This appeal arose from a March 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The RO denied entitlement to service connection for a cervical spine disorder, and for a chronic acquired disorder manifested by headaches, secondary to service- connected status post fractures of L1-L2, with pain and limitation of motion. The RO granted entitlement to an increased evaluation of 20 percent for status post fractures of L1-L2, with pain and a limitation of motion; and granted an extension of a temporary total convalescence evaluation for status post right knee surgery beyond February 28, to June 30, 1992. The prior 10 percent evaluation was restored effective July 1, 1992. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he developed chronic headaches as the result of his service-connected low back disability. He avers that he has a chronic disorder of the cervical spine which is either directly related to service or secondary to his service- connected low back disability. The appellant argues that his low back and right knee disabilities are more disabling than currently evaluated, thereby warranting entitlement to increased evaluations. 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’s claim of entitlement to service connection for a cervical disorder is not well grounded. The Board further finds that the preponderance of the evidence is against claims of entitlement to service connection for a chronic acquired disorder manifested by headaches, secondary to service- connected status post fractures of L1-L2, with pain and limitation of motion; and the claims of entitlement to increased evaluations for status post fractures of L1-L2, with pain and limitation of motion, and status post right knee surgery. FINDINGS OF FACT 1. A chronic acquired disorder manifested by headaches is not causally related to the veteran’s service-connected status post fractures of L1-L2, with pain and limitation of motion. 2. The claim for service connection for a cervical spine disorder is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 3. Status post fractures of L1-L2, with pain and limitation of motion, are productive of not more than slight limitation of motion. 4. Status post injury of the right knee is productive of not more than slight impairment. CONCLUSIONS OF LAW 1.. A chronic acquired disorder manifested by headaches is not proximately due to or the result of the veteran’s status post fractures of L1-L2, with pain and limitation of motion. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.310(a) (1994). 2. The claim for service connection for a cervical spine disorder is not well grounded. 38 U.S.C.A. § 5107. 3. The criteria for an evaluation in excess of 20 percent for status post fractures of L1-L2, with pain and limitation of motion, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.71a, Diagnostic Codes 5285, 5292 (1994). 4. The criteria for an evaluation in excess of 10 percent for status post right knee surgery have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.71a, Diagnostic Code 5257 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for headaches, secondary to service-connected status post fractures of L1-L2, with pain and limitation of motion. The veteran’s claim of entitlement to service connection for headaches, secondary to service connected status post fractures of L1-L2, with pain and limitation of motion is well grounded within the meaning of 38 U.S.C.A. § 5107(a). The Board is satisfied that all relevant facts have been properly developed with respect to the claim, and that no further assistance to the appellant is required in order to comply with VA's duty to assist him in the development of his claim. The veteran is service connected for status post fracture, L1-L2, with pain and limitation of motion. A review of the veteran’s service medical records discloses no complaints or findings pertaining to a chronic headache disorder. The service medical records do, however, show that in March 1984, he was involved in a motor vehicle accident in which the veteran sustained his service connected lumbar disorder. There is no evidence pertaining to complaints of a headache following the accident. In October 1985, the veteran struck his head on a pipe. Examination resulted in a clinical assessment of trauma to the head. In March 1988, the veteran was seen for his separation examination. He denied ever having either frequent or severe headaches. Physical examination found the head and neurological system to be normal. In September 1991, the veteran was seen at a VA outpatient clinic. The history provided by the veteran to the examiner was not recorded, nor were the examination findings. The examiner, however, offered the opinion that the veteran’s occipital headaches may be associated with not only the veteran’s back injury, but with a neck injury as well. At a February 1992 VA neurological examination the veteran reported having sustained considerable head trauma when involved in a motor vehicle accident in service in 1984. Reportedly he was "thrown" from his vehicle, and had since experienced frequent occipital headaches of 5-10/10 intensity. Initially, the veteran reported that these headaches occurred once every two weeks or less, but by the time of this study the veteran reported having headaches every other day. The veteran reported sustaining both a head injury and a neck injury in a "1974" accident. Physical examination resulted in the diagnosis of common occipital migraines versus post traumatic migraines. Service connection may be granted for any disorder which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). In this case, the service medical records are devoid of any complaints or findings pertaining to either a primary chronic headache disorder, or a chronic headache disorder secondary to the veteran’s service connected lumbar disorder. Similarly, post service, no complaint or finding pertaining to a chronic headache disorder was presented until September 1991 when an examiner offered the opinion that there "may be" a relationship between such a disorder and either a neck or back injury. The possible relationship between the veteran’s headache disorder and a neck disorder is moot in light of the discussion below. With respect to any relationship between the veteran’s headache disorder and his service connected back disorder the Board observes that an opinion that there may be a relationship is fundamentally different from an opinion which states that there is a relationship. Indeed, the United States Court of Veterans Appeals has held that where a physician is unable to provide a definite causal connection, the opinion on that issue constitutes "what may be characterized as 'non-evidence.'" See Perman v. Brown, 5 Vet.App. 237, 241 (1993); (citing Sklar v. Brown, 5 Vet.App. 140, 145-46 (1993); Kates v. Brown, 5 Vet.App. 93, 95 (1993); Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992)); see also Dyess v. Derwinski, 1 Vet.App. 448, 453-54 (1991). Accordingly, we find that the opinion provided by the September 1991 VA examiner is "non-evidence," and that it does not provide a basis for granting service connection. Likewise, the opinion presented by the examiner who conducted the February 1992 VA neurological study is an insufficient predicate upon which to grant service connection. In this respect, the veteran informed that physician that he had was "thrown" from his motor vehicle, and that he had experienced headaches ever since. The service medical records, however, provide no evidence that the veteran was thrown from his vehicle. Indeed, with respect to complaints of headaches, the veteran himself in March 1988, denied ever having a history of frequent or severe headaches when he was separated from active duty more than four years after the accident in question. As the Board is not bound to accept medical opinions which are based on history supplied by the veteran where that history is unsupported by the medical evidence, see Black v. Brown, 5 Vet.App. 177 (1993); Swann v. Brown, 5 Vet.App. 229 (1993); Reonal v. Brown, 5 Vet.App. 458 (1993); and Guimond v. Brown, 6 Vet.App. 69 (1993), the February 1992 examination report does not provide a basis upon which to grant service connection. Accordingly, because the only other opinion linking the veteran’s current headache disorder with service and/or his back disability is that presented by the veteran himself, and as he is not competent to offer such an opinion in view of his lack of medical training, Espiritu v. Derwinski, 2 Vet.App. 492 (1992), the Board finds that the preponderance of the evidence is against granting service connection for a chronic headache disorder. II. Entitlement to service connection for a cervical disorder. Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that his claims are well grounded; that is, that the claims are plausible. Grivois v. Brown, 6 Vet.App. 136, 139 (1994); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his claim for service connection for a cervical spine disorder is not well grounded, and that it should be dismissed. Where the determinative issues involve causation or a medical diagnosis, competent medical evidence to the effect that the claims are 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 health care professional and does not constitute a competent medical authority. Espiritu. Consequently, his lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for well grounded claims, Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the absence of cognizable evidence renders a veteran's claim not well grounded. In this regard, the service medical records are negative for any finding of a disorder of the cervical spine. A November 1991 VA radiographic study of the cervical spine was interpreted as showing degenerative joint disease most marked at "L"3/4 with narrowed neural foramina and to a lesser degree at 5/6/7. There was no evidence of a cervical fracture. At a March 1992 VA examination the veteran reported having sustained neck injuries in a 1984 motor vehicle accident. There is no competent medical evidence of record linking the post service reported degenerative changes of the cervical spine to service, or to the veteran's service-connected status post fractures of L1-L2, with pain and limitation of motion. No VA or non-VA medical health professional has determined that the appellant's post service reported cervical spine disorder is linked to service or to his service-connected disability of the low back. Accordingly, in the absence of cognizable competent evidence, the Board finds that the veteran's claim is not well grounded and must be dismissed. The Board recognizes that this claim has been disposed of in a manner different from that utilized by the RO. The Board therefore 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 claims after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105; McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). 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). III. Entitlement to an increased evaluation for status post fractures of L1- L2, with pain and limitation of motion, currently evaluated as 20 percent disabling. The Board finds that the veteran's claim of entitlement to an increased evaluation for his status post fractures of L1-L2, with pain and limitation of motion, is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that it is at least plausible that his low back disability has increased in severity. 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). The service medical records show that in March 1984 the veteran was involved in a motor vehicle accident and that he sustained fractures of L1-L2. He was treated on a conservative basis. The spine was reported as normal when the appellant was examined for separation from service. At a May 1991 VA general medical examination the veteran was noted to demonstrate a normal surface anatomy of the spine. Straight leg raising was to 40 degrees bilaterally. Forward flexion was to 95 degrees. Extension backward was to 10 degrees with pain, and lateral bending was to 35 degrees bilaterally with pain. Rotation was to 60 degrees bilaterally without pain. Motor and sensory evaluations were noted to be within normal limits. The examination diagnosis was back pain. A July 1991 VA x-ray of the lumbosacral spine resulted in a radiologic impression of mild curvature and minimal anterior compression of L1 vertebral body. The RO granted entitlement to service connection for status post fractures of L1-L2, with pain and limitation of motion, and assigned a 10 percent evaluation in a September 1991 rating decision. VA outpatient treatment reports on file dated in 1991 and 1992 show the veteran was treated on occasion for low back pain. At a February 1992 VA neurologic examination the veteran reported having sustained a lower back injury as the result of a motor vehicle accident in service in 1984. He reported being unable to sit for long periods secondary to pressure and stiffness in his lower back. He denied any lower extremity symptoms. The appellant stated that his weight lifting capacity was limited in that he had no problems lifting a bag of groceries or his children, but he had been told to avoid heavier objects. Motor examination revealed 5/5 strength throughout bilaterally. Sensory examination was unremarkable to light touch, pinprick, and proprioception. Deep tendon reflexes were 2+ throughout bilaterally with downgoing toes. The examiner noted that lumbosacral spine films had revealed far advanced degenerative disease, with a mild curvature, and minimal anterior compression of the L1 vertebral body. The diagnostic impression was lower back pains without signs or symptoms of radiculopathy, most likely secondary to degenerative joint disease and residuals of old injury. At a March 1992 VA orthopedic examination the veteran reported that he had difficulty sitting because of his back, and that he was extremely stiff on arising in the morning and required a warm up period. He occasionally had episodes of back spasm. On examination he had a slight slouch and there was slight curvature of the back. There was no true muscle spasm but the muscles of the paravertebral region were tight especially on the right. Forward flexion was to 60 degrees, extension backward was to 15 degrees, and bilateral lateral flexion was to 20 degrees. Rotation to the left was to 45 degrees, and to 35 degrees on the right. Deep tendon reflexes were normal and symmetrical, and lower extremity muscle strength was normal. Straight leg raising testing was essentially negative although the appellant stated that he had pain in the back which was relatively constant. The examiner noted that x-rays taken in July 1991 showed an anterior compression of L1 and possible slight compression of L2, at least a deepening of the central depression of the vertebra. The diagnostic impression was status post compression fractures of L1-L2; and chronic back strain secondary to the foregoing. The examiner noted the veteran apparently had a fracture of the vertebra which had left him with a slight postural change including a very mild gibbous. He was now subject to low back pain with tightness and spasms of the muscle. The examiner opined that this condition would persist. As far as his back was concerned the examiner offered the opinion that the veteran was functional for most physical activity, but that he should avoid activities requiring bending and twisting. The veteran's status post fractures of L1-L2, with pain and limitation of motion, are rated as 20 percent disabling with application of diagnostic codes 5285 and 5292 of the VA Schedule for Rating Disabilities. A 10 percent evaluation has been assigned under diagnostic code 5285 for demonstrable deformity of a vertebral body. Another 10 percent evaluation has been assigned for not more than slight limitation of motion of the lumbar spine under diagnostic code 5292. Under diagnostic code 5285 the next higher evaluation of 60 percent requires residuals of vertebral fracture without cord involvement, and abnormal mobility requiring a neck brace (jury mast). This is not shown by the evidence of record. The next higher evaluation of 20 percent under diagnostic code 5292 requires moderate limitation of motion of the lumbar spine. This has similarly not been shown by the evidence of record. The veteran's low back disability is properly rated. The 20 percent evaluation takes into consideration his complaints of various symptomatology, vertebral deformity, slight limitation of motion, and the disability due to pain is encompassed in the currently assigned rating. Moreover, it is well to observe that in 1992, the VA orthopedist noted that the appellant was physically capable of performing most activities. There is no question presented as to which of two or more evaluations would more properly classify the severity of the veteran's low back disability. The status post fractures of L1-L2, with pain and limitation of motion, have not rendered the veteran's disability picture unusual or exceptional in nature and have not been shown to markedly interfere 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). Accordingly, the Board finds that no basis has been presented upon which to predicate a grant of an increased evaluation for status post fractures of L1-L2, with pain and limitation of motion. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.71a, Diagnostic Codes 5285, 5292. IV. Entitlement to an increased evaluation for status post right knee surgery, currently evaluated as 10 percent disabling. As was the case with the veteran's low back disability discussed above, the Board finds that the veteran's claim for an increased evaluation for his right knee disability is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that it is at least plausible that his right knee disability has increased in severity. 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 history of the veteran's right knee injury. 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 the veteran sustained an injury to his right knee while playing football in 1986. He underwent surgery when hospitalized in February 1987. Subsequently he was seen for strengthening exercises. At a May 1991 VA general medical examination the veteran was found to have a well healed surgical scar along both sides of the right knee with pinpoint scars from arthroscopy healing. Flexion was to 80 degrees with discomfort, and extension was to 10 degrees. The examiner diagnosed post surgical status of the right knee, with pain and discomfort, noted to be debilitating and disabling. An x-ray of the right knee was interpreted was negative for any abnormalities. The RO granted entitlement to service connection for status post right knee surgery with assignment of a 10 percent evaluation effective March 19, 1991. A temporary total convalescence evaluation was assigned effective from April 30 to May 31, 1991. The prior 10 percent evaluation was reinstated effective June 1, 1991. A July 1991 VA x-ray of the right knee was interpreted as unremarkable. The appellant was hospitalized by VA in December 1991 for an arthrogram and anterior cruciate reconstruction of the right knee. The diagnoses at discharge were an anterior cruciate ligament deficient right knee; and status post anterior cruciate ligament reconstruction, central one third patellar tendon graft. A January 1992 VA outpatient treatment report shows that the veteran's range of motion of the right knee was from 0 to 140 degrees. He was noted to be doing well. In February the range of motion was 0 to 135 degrees. The appellant was again noted to be doing well. The veteran's right knee disability is evaluated as 10 percent disabling under diagnostic code 5257 of the VA Schedule for Rating Disabilities. The 10 percent evaluation contemplates not more than slight recurrent subluxation or lateral knee instability. The next higher evaluation of 20 percent requires moderate recurrent subluxation or lateral instability of the knee. This has not been shown on examination. An increased evaluation of 20 percent is not warranted under diagnostic code 5260 as right knee flexion is not limited to 30 degrees. Similarly, an increased evaluation of 20 percent is not warranted under diagnostic code 5261 as right knee extension is not shown to be limited to 15 degrees. VA outpatient treatment reports discussed above show that the veteran has been doing well since his arthroscopic surgery. There is no evidence of record of increased right knee impairment due to the previous surgery. The disability of the right knee is no more than slight in nature and is adequately compensated at the current evaluation of 10 percent. Under the same rationale as was the case with the veteran’s claim for an increased evaluation for a lumbar disorder, the Board finds that no basis has been presented upon which to predicate the assignment of an increased evaluation with application of the criteria under 38 C.F.R. §§ 3.321(b)(1), 4.7, or 4.40. Therefore, it is the judgment of the Board that no basis has been presented upon which to predicate a grant of an increased evaluation for status post right knee surgery. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.71a, Diagnostic Code 5257. ORDER Entitlement to service connection for a chronic acquired disorder manifested by headaches, secondary to service-connected status post fractures of L1-L2, with pain and limitation of motion, is denied. The claim of entitlement to service connection for a cervical spine disorder is dismissed. Entitlement to an increased evaluation for status post fractures of L1-L2, with pain and limitation of motion, is denied. Entitlement to an increased evaluation for status post right knee surgery is denied. DEREK R. BROWN 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.