BVA9504392 DOCKET NO. 92-23 398 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for defective hearing of the right ear. 2. Entitlement to service connection for residuals of exposure to asbestos. 3. Entitlement to an increased (compensable) rating for right shoulder impingement syndrome. 4. Entitlement to an increased (compensable) rating for defective hearing in the left ear. 5. Entitlement to an increased (compensable) rating for a meniscal tear of the right knee. 6. Entitlement to an increased (compensable) rating for a laceration of the tendon of the right small finger. REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Sabrina M. Tilley, Counsel INTRODUCTION The veteran served on active duty from July 1970 to June 1991. This matter came to the Board of Veterans' Appeals (Board) on appeal from a February 1992 rating decision. In April 1993, the case was remanded by the Board for additional development. The issue of service connection for a low back disability which was a part of the original claim is no longer a matter in controversy because over the intervening period, in a rating decision dated in February 1994, the RO granted service connection for a low back disability. This disability was assigned a 20 percent evaluation. In its current status, the case returns to the Board following the completion of evidentiary development made pursuant to the April 1993 remand. At the August 1992 hearing, the veteran referred to disability of the left knee. (See pages 4 and 5 of the hearing transcript.) The veteran's representative has referred to the veteran's mild obstructive airways disease. (See VA Form 1-646, dated June 17, 1994.) The Board also finds these issues to be impliedly raised and they are referred to the RO for action deemed appropriate. CONTENTIONS OF APPELLANT ON APPEAL The veteran states that he was exposed to asbestos when he served as a mechanic, he had to remove asbestos from ships. It is argued that the veteran is entitled to at least a 10 percent rating for his right meniscal tear, inasmuch as he reportedly has problems despite a full range of flexion. He reports that this disability inhibits him in his employment, as it limits his ability to climb ladders and stairs. It is also reported that the veteran received a hearing aid for the right ear during his service in the navy, just prior to his retirement. Also, it is argued that the veteran is entitled to a higher evaluation for his right shoulder and right hand and that these conditions have a measurable effect on the veteran's ability to work as a mechanic. The veteran testified that he experienced periodic locking of the knee. In his job, he is required to work over his head and in awkward positions. He described ways in which he tried to compensate for his shoulder and hand disabilities. The veteran reported that he has shortness of breath with moderate exertion. He attributes this condition to his work around chemicals and materials of various types to which he was exposed as a machinist. 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 files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not submitted sufficient evidence to justify the belief of an impartial individual that the claims for service connection for defective hearing of the right ear and for residuals of exposure to asbestos are well grounded. It is also the Board's decision that the preponderance of the evidence favors a 10 percent evaluation for right shoulder impingement syndrome and also for a meniscal tear of the right knee. The preponderance of the evidence is against the claims for increased (compensable) ratings for defective hearing in the left ear and for residuals of a laceration of the tendon of the right small finger. FINDINGS OF FACT 1. All relevant evidence necessary for a fair and informed decision has been obtained by the originating agency. 2. The veteran is not shown to have a hearing loss in the right ear for which compensation is authorized. 3. No competent evidence has been received to show that the veteran currently has residuals of his inservice exposure to asbestos. 4. The service-connected right shoulder impingement syndrome is productive of painful motion without limitation of motion, any other type of impairment of the humerus, evidence of recurrent dislocation or deformity in the right shoulder. 5. The veteran's defective hearing in the left ear is equivalent to a numeric designation of I. 6. The veteran's service-connected meniscal tear of the right knee is productive of pain on motion. 7. The veteran's service-connected laceration of the tendon of the right small finger results in an absence of active flexion of the distal interphalangeal joint of the small finger of the right had due to the severance and retraction of the profundus tendon. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for defective hearing in the right ear is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991); 38 C.F.R. § 3.385 (1993). 2. The veteran's claim for service connection for residuals of exposure to asbestos is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104. 3. The criteria for a 10 rating for a right shoulder impingement syndrome have been satisfied. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 4.7, 4.40, Codes 5201, 5202 (1993). 4. The criteria for an increased (compensable) evaluation for defective hearing in the left ear have not been satisfied. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.321, 4.7, Code 6100 (1993). 5. The criteria for a 10 percent evaluation for a meniscal tear of the right knee have been satisfied. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.321, 4.7, 4.40, Codes 5257, 5260, 5261 (1993). 6. The criteria for a compensable evaluation for a laceration of the tendon of the right small finger have not been satisfied. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 1991); 38 C.F.R. §§ 3.321, 4.7, Codes 5219(a), 5227 (1993) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The law requires that a claimant shall have the burden of submitting a claim that is well grounded. 38 U.S.C.A. § 5107(a) (West 1991). The VA benefits system requires more than just an allegation; but a claimant must submit supporting evidence sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). Although the claim need not be conclusive, the statute requires the claim must be accompanied by evidence. Id. In the veteran's case, he has made allegations to the effect that he currently has a hearing loss in the right ear that is related to his active service. However, the evidence of record is not consistent with his contentions. Throughout his active service, the veteran underwent extensive evaluations of his hearing sensitivity. Nonetheless, the audiometric testing conducted during his active service failed to reveal any evidence of defective hearing in the right ear. At the time of the veteran's retirement from active service, he showed thresholds of 10, 10, 30, 30, and 30 decibels at the frequencies 500, 1000, 2000, 3000 and 4000 hertz. At the postservice audiogram conducted by VA in August 1991, the veteran demonstrated thresholds of 5, 5, 25, 25, and 30 decibels at the same tested frequencies. The speech recognition score was 100 percent. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active wartime service. 38 U.S.C.A. §§ 1110, 1131. Impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000 or 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. According to these criteria, the veteran is not shown to have a current hearing loss in the right ear for which compensation benefits are authorized by law because the evidence does not demonstrate impaired hearing which is a disability. While the veteran's allegations of entitlement have been considered, his lay assertions, as they pertain to a question of medical diagnosis or causation, are not supported by competent evidence and, as such, cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a). Grottveit v. Brown, 5 Vet.App. 91 (1993). II. The veteran's service medical records and postservice evaluation and treatment reports make no reference to any type of disability as a result of his exposure to asbestos during active duty. A December 1982 note shows that the veteran was in an asbestos medical surveillance program, at which time he indicated that he was uncertain whether he had worked with asbestos or asbestos products. A pulmonary function test was conducted in December 1983, pursuant to the asbestos surveillance. At that time, the veteran had a predicted forced vital capacity of 93 percent and a predicted forced vital capacity after one second of 85 percent. The April 1984 report of asbestos medical surveillance program shows that the veteran reported that he had been exposed to asbestos during his career in the navy. An October 1987 respiratory questionnaire shows that the veteran reported that he was working directly with asbestos in his job and had been exposed on a regular basis for more than one, but less than five, years. He denied having a cough, phlegm, wheezes or shortness of breath. The physical examination showed that he had a normal chest configuration and that there were no crackles or wheezing shown. He had a forced vital capacity of 4.60 liters and forced expiratory volume at one minute of 3.38 liters. In August 1988, the report of medical questionnaire for respirator user showed that the veteran denied having lung disease, a persistent cough, shortness of breath, or other conditions that might interfere with the use of a respirator. The veteran denied having a cough, phlegm, wheezing or shortness of breath. No physical abnormalities were demonstrated. The forced vital capacity was 4.69 liters, and the forced expiratory volume was 3.22 liters. The September 1988 Asbestos Exposure periodic medical questionnaire shows that the veteran reported that he had had mild exposure in the previous year. He denied having any diseases or significant symptoms of the respiratory system. In June 1993, the veteran underwent a VA respiratory examination pursuant to the Board's April 1993 remand. At that time, the veteran reported a history of exposure to asbestos during his naval service. He reported having shortness of breath and wheezing with exertion. The pulmonary function tests showed both the predicted forced vital capacity and the forced expiratory volume at one minute were 86 percent and findings were interpreted as being consistent with mild obstructive airways disease. A history of asbestos exposure was noted in the clinical assessment; but, the examiner noted that there was no evidence of restriction on pulmonary function tests or significant abnormality on chest X-rays. The examiner's report leaves the inference that the examination did not revel any evidence of residuals of exposure to asbestos. This report as well as the remainder of the record fails to show that the veteran currently has any asbestos-related disorder. Without a showing of current disability which is related to inservice asbestos exposure, his claim is not well grounded. While the veteran's allegations of entitlement have been considered, his lay assertions, as they pertain to a question of medical diagnosis or causation, are not supported by competent evidence and, as such, cannot constitute evidence to render a claim well grounded under 38 U.S.C.A. § 5107(a). Grottveit v. Brown, 5 Vet.App. 91 (1993). III. Service connection was originally established for right shoulder impingement syndrome in a rating decision, dated in February 1992. This decision was based on the veteran's service medical records and the report of the August 1991 VA examination. A noncompensable evaluation was assigned. The veteran underwent a VA orthopedic examination in August 1991. At that time, he reported that he had intermittent pain deep within the joint in the subacromial area. He stated that he had difficulty with overhead activity and had problems in weather changes. Occasionally, when he put pressure on the shoulder, he experienced the sensation that his arm was falling asleep. The physical examination of the shoulder showed that there was a full range of motion and tenderness in the subacromial area and along the course of the biceps tendon. There was a painful arc of motion, and resisted forward flexion caused pain in the subacromial area. The diagnosis included right shoulder impingement syndrome. The veteran underwent another VA orthopedic examination in May 1993, at which time he reported that he had pain in the subacromial space and also in the trapezius muscle. The pain was reportedly worse with overhead activity. On the examination, although he had a full range of motion, he had a painful arc between 120 and 150 degrees of abduction. There was tenderness in the subacromial area and along the biceps tendon. The clinical record shows that the veteran has painful motion in the service-connected right shoulder which qualifies for a 10 percent evaluation for functional loss due to pain under the provisions of 38 C.F.R. § 4.40. The veteran has not demonstrated the type of disablement warranting a higher evaluation, inasmuch as he currently has no limitation of motion, no other impairment of the humerus, no recurrent dislocation and no evidence of deformity in the right shoulder. In view of the foregoing, the Board concludes that the preponderance of the evidence favors an increased rating for right shoulder impingement syndrome. IV. Service connection was established for defective hearing of the left ear in a rating decision, dated in February 1992. This decision was based on the veteran's service medical records and the report of the VA audiometric testing, conducted in August 1991. A noncompensable evaluation was assigned for that disability. Audiometric testing conducted in August 1991 showed that the veteran had thresholds in the left ear of 10, 25, 40 and 25 decibels at 1000, 2000, 3000 and 4000 hertz. These results translate into a numeric designation of I for unilateral hearing loss, which warrants a noncompensable rating under 38 C.F.R. § 4.87, Code 6100, Tables VI and VII. While the veteran's claim that he is entitled to an increased rating has been considered, he is advised that he has not demonstrated the degree of hearing loss for which a compensable evaluation is authorized. Moreover, the veteran has not presented such an unusual disability picture or an exceptional case--i.e., the need for frequent hospitalization or marked interference with employment--that would obviate the use of the normal rating criteria. V. Service connection was established for a meniscal tear of the right knee in a rating decision, dated in February 1992, based on service medical records and the report of VA examination, conducted in August 1991. The veteran was assigned a noncompensable rating for that disability. At the August 1991 VA orthopedic examination, the veteran presented a history of an inservice right knee injury. Since that time, the veteran had experienced intermittent swelling and giving way of the knee. The physical examination showed that the veteran was able to extend the knee from 0 to 125 degrees. There was no joint line tenderness; but, there was crepitation with motion of the knee. The patella tracked well, and the McMurray sign was positive. The pertinent impression was a right meniscal tear. The veteran underwent another VA orthopedic examination in May 1993. At that time, he presented the same history of injury and indicated that since that time he had had severe patellofemoral symptomatology. There is some uncertainty as to which knee was examined but, viewing the evidence most favorably to him, the veteran had a full range of motion in the right knee, but pain in the subpatellar area. At a December 1993 orthopedic examination, there was a full range of right knee motion, with no joint line tenderness or effusion. The ligaments were stable. The diagnosis was contusion secondary to blunt trauma. The clinical findings are consistent with a 10 percent evaluation for functional loss due to pain, under the provisions of 38 C.F.R. § 4.40. The veteran has not shown limitation of motion or instability warranting a schedular evaluation higher than 10 percent. Accordingly, the Board finds that the veteran is entitled to a 10 percent rating for meniscal tear of the right knee. VI. Service connection was established for residuals of a laceration of the tendon of the right small finger in the February 1992 rating decision. A noncompensable evaluation was assigned. The veteran underwent a VA orthopedic evaluation in August 1991. At that time, he related that he sustained numerous lacerations to his right hand while working on equipment. There was a laceration to the right, small finger along the radial aspect of the interphalangeal region. This lacerated the deep flexor tendon to the distal interphalangeal joint. Originally, the injury was treated as a laceration. Once it was recognized that the tendon had been severed, the retraction had already become so great that no tendon repair was recommended. Since that time, the veteran had experienced weakness of his grip strength in his right-dominant hand as a result of inability to bring the finger all the way down to the palmar crease. At the time of the examination, there was a laceration, measuring 1 centimeter in length, over the interphalangeal region, on the radial side. The motion of the proximal interphalangeal joint was full extension to approximately 80 degrees of flexion. The distal interphalangeal joint had no active flexion or extension and was fixed in an extended position. There was about 20 degrees of passive flexion of the joint. Sensation was diminished on the radial side of the finger. The veteran underwent another VA orthopedic examination in May 1993. At that time, the veteran reported that the had sustained a laceration over the proximal phalanx when he was cut with an object while working with machinery. There was a laceration of the profundus tendon which retracted up into the forearm. The examination showed that there was no active flexion of the distal interphalangeal joint of the right small finger. The grip strength was weak as a result. Sensation was otherwise normal and there was a fairly cosmetic oblique incision measuring approximately 1 centimeter over the proximal phalanx which was well healed and cosmetic in nature. The pertinent diagnosis was right-dominant hand, small finger with loss of profundus tendon, post-traumatic. The examiner further stated that "[t]his represents a moderate disability to this gentleman whose occupation is that of a mechanic." A noncompensable rating is warranted for ankylosis of any finger other than the thumb, index or middle fingers, unless there is extremely unfavorable ankylosis which is to be rated as an amputation. 38 C.F.R. Code 5227. Recent evaluations show disability in the right small finger is not severe enough so as to be the equivalent of extremely unfavorable ankylosis. That is, the evidence does not demonstrate that all of the joints of the right small finger are ankylosed in extension or in extreme flexion, or with rotation and angulation of the bones. 38 C.F.R. Code 5219(a). There is no basis on which to grant a higher schedular evaluation Moreover, the veteran has not presented such an unusual disability picture or an exceptional case--i.e., the need for frequent hospitalization or marked interference with employment--that would obviate the use of the normal rating criteria. ORDER The claims for service connection of defective hearing of the right ear and for residuals of exposure to asbestos are not well grounded. These claims are dismissed. Increased ratings of 10 percent each for right shoulder impingement syndrome and for a meniscal tear of the right knee are granted, subject to controlling regulations applicable to the payment of monetary awards. Increased (compensable) ratings for defective hearing of the left ear and for a laceration of the tendon of the right small finger are denied. BARBARA B. COPELAND 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.