Citation Nr: 0005504 Decision Date: 02/29/00 Archive Date: 03/07/00 DOCKET NO. 96-13 825A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for a duodenal ulcer. 2. Assignment of an initial rating for service-connected residuals of right knee injury, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: R. Edward Bates, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran served on active duty from June 1969 to June 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 1994 by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied service connection for a stomach condition, and granted service connection for residuals of right leg injury, assigning a noncompensable (zero percent) rating. During the appeal, in a January 1998 rating decision, the RO assigned a 10 percent rating for residuals of right knee injury, effective from August 1994, the date of the veteran's claim for service connection. While the October 1994 rating decision denied service connection for post-traumatic stress disorder, service connection and a 100 percent rating were subsequently granted during the appeal, effective from July 22, 1994. As this represents a full grant of benefits on appeal, and the veteran has not entered disagreement with the effective date assigned, this issue is not in appellate status before the Board. FINDINGS OF FACT 1. There is no competent medical evidence of record to demonstrate a nexus between any disease or injury during service, including a urinary tract infection, and the veteran's currently diagnosed duodenal ulcer or peptic ulcer disease. 2. The veteran's residuals of right knee injury are manifested by status post surgical repair of medial and collateral ligament tear, which is healed, with limitation of flexion to 130 degrees, with infrequent locking, pain, and effusion into the joint. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for a duodenal ulcer is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The schedular criteria for a rating in excess of 10 percent for residuals of right knee injury have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5258, 5259 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection: Duodenal Ulcer Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). 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. 38 C.F.R. § 3.303(b) (1999). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (1999). Before the Board may address the merits of a veteran's claim, however, it must first be established that the claim is well grounded. In this regard, a person who submits a claim for VA benefits shall have "the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a) (West 1991); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). A well-grounded claim is "a plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § [5107]." Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to the claim, and the claim must fail. See Epps v. Gober, 126 F.3d 1464, 1467 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 2348 (1998) (the Secretary cannot undertake to assist a veteran in developing facts pertinent to his or her claim until such a claim has first been established); see also Morton v. West, No. 96-1517 (U.S. Vet. App. July 14, 1999) (absent the submission of a well-grounded claim, the Secretary cannot undertake to assist a veteran in the development of his or her claim). To establish that a claim for service connection is well grounded, a veteran must demonstrate medical evidence of a current disability; medical evidence, or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court) has indicated that, alternatively, a claim may be well grounded based on application of the rule for chronicity and continuity of symptomatology, set forth in 38 C.F.R. § 3.303(b). The Court held that the chronicity provision applies where there is evidence, regardless of its date, which shows that a veteran had a chronic condition either in service or during an applicable presumption period and that the veteran still has such a condition. See Savage v. Gober, 10 Vet. App. 488, 497-98 (1997). That evidence must be medical, unless it relates to a condition that the Court has indicated may be attested to by lay observation. Id. If the chronicity provision does not apply, a claim may still be well grounded on the basis of 38 C.F.R. § 3.303(b) "if the condition is observed during service or any applicable presumption period, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology." Id. at 498. The veteran contends that he currently has a duodenal ulcer which had its onset in service. He specifically contends that, since service, he has experienced signs of back and stomach pain, which are signs of an ulcer. He contends that kidney disease in service was the onset of an ulcer, he was incorrectly treated for a kidney disease, which was actually an ulcer, and that gastritis in 1974 "could have been an ulcer because back pains were also recorded." Service medical records reflect that the veteran was treated for a urinary tract infection in May 1971, but are negative for complaints, findings, or diagnosis of an ulcer disease or stomach disorder. At the service separation examination in June 1971, the veteran specifically indicated that he did not have, and had not had, stomach or intestinal trouble, and the separation physical examination found the veteran's abdomen and viscera to be normal. In July 1975, the veteran filed a claim for service connection for a kidney condition, reporting that he experienced a kidney infection in March 1971 and in 1974. Private treatment records dated in June 1992 reflect diagnostic impressions which include thickened mucosal folds seen in the stomach most likely due to gastritis, deformed duodenal bulb indicating old healed ulcer disease, and no acute ulceration. A private hospitalization report in June 1992 reflects a diagnosis of peptic ulcer disease. A report of hospitalization for the period from July 1994 to July 1995 reflects a diagnosis of peptic ulcer disease. At a VA examination in June 1995, the veteran reported that he had never had a kidney problem; he asserted that the problem had been an ulcer problem, which he had experienced since 1972. The examiner noted a history of ulcer disease and bleeding ulcers on two occasions. In August 1995, the diagnosis was peptic ulcer disease. A VA compensation examination in February 1996 noted the veteran's reported history of peptic ulcer disease with episodes of upper gastrointestinal bleed in 1990 and 1991. The diagnoses included an active duodenal ulcer. Later in February 1996, the veteran reported a history of peptic ulcer disease, with two or three episodes of upper gastrointestinal bleed in 1990 and 1991. The examination resulted in a diagnosis of active duodenal ulcer. At a personal hearing in June 1996, the veteran testified to the following: he had stomach problems during service, and in 1972 he went to the dispensary for a kidney infection; in August 1974 the doctors were saying he did not have a kidney disease; he was treated for an ulcer beginning in 1974, and prior to 1989; and he experienced gastrointestinal bleed in 1990 and 1991. In an undated statement received in March 1998, Santo Taglia, M.D., wrote that it was "possible to have a kidney infection & peptic ulcer disease concomitently [sic]." A report of contact dated in March 1998 reflects Dr. Taglia's statement that the veteran had asked if it was "possible" to have a kidney infection and peptic ulcer condition at the same time, to which he replied that it was possible, but he was speaking theoretically and his statement was not to be construed as a definitive statement that at some point in the past the veteran had both kidney and ulcer conditions at the same time. After a review of the evidence of record, the Board finds that there is no competent medical evidence of record to demonstrate a nexus between any disease or injury during service, including a kidney disorder, and the veteran's currently diagnosed duodenal ulcer or peptic ulcer disease. Even assuming the credibility of the veteran's reported post- service symptomatology (back pain and stomach pain), for the purpose of determining whether he has submitted a well- grounded claim, there is still no competent medical evidence to relate the veteran's currently diagnosed duodenal ulcer or peptic ulcer disease to his reported continuous post-service symptomatology. Savage at 498. The Board notes the veteran's contention and belief that such a medical nexus exists, that is, that symptomatology he experienced in service and after service separation represented the onset of ulcer disease. However, it is the province of health care professionals to enter conclusions which require medical opinions, such as an opinion as to the relationship between a current disability and service. As a result, the veteran's lay opinion does not present a sufficient basis upon which to find this claim to be well grounded. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Stadin v. Brown, 8 Vet. App. 280, 284 (1995) (layperson is generally not capable of opining on matters requiring medical knowledge, such as the condition causing symptoms). The veteran's statements do not competent medical evidence because there is no indication that he has the medical training, expertise, or diagnostic ability to competently render such medical nexus opinion. Heuer v. Brown, 7 Vet. App. 379, 384 (1995). With regard to the veteran's hearing testimony that in August 1974 doctors told him he did not have a kidney disease, or that back pains thought to be associated with kidney disease were actually ulcer disease, the Court has held that such a veteran's account, "filtered as it [is] through a layman's sensibilities, of what a doctor purportedly said is simply too attenuated and inherently unreliable to constitute 'medical' evidence." Robinette v. Brown, 8 Vet. App. 69, 77 (1995). With regard to the statement by Dr. Taglia, that it was "possible to have a kidney infection & peptic ulcer disease concomitently [sic]," considered in its context, this statement does not constitute a medical nexus opinion. As indicated by the March 1998 report of contact, Dr. Taglia stated that his written statement was not to be construed as a statement that the veteran actually had experienced both kidney and ulcer conditions at the same time. The opinion that both kidney and ulcer conditions could occur at the same time, even if stated with medical certainty, does not establish a relationship between the veteran's currently diagnosed duodenal ulcer and the occurrence of ulcer conditions in the past. Furthermore, with regard to such statements of possibility by a medical professional, service connection may not be predicated on a resort to speculation or remote possibility. 38 C.F.R. § 3.102 (1996). In Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992), the Court held that a service connection claim is not well grounded where the only evidence supporting the claim was a letter from a physician indicating that veteran's death "may or may not" have been averted if medical personnel could have effectively intubated the veteran; such evidence was held to be speculative. While the Court distinguishes "could" and "may" medical, etiological opinions, the Court has held that such medical, etiological opinions employing the word "could" should be viewed in its full context, and not characterized solely by the medical professional's choice of words. See Lee v. Brown, 10 Vet. App. 336 (1997). In Molloy v. Brown, 9 Vet. App. 513 (1996), a new and material case, the Court, citing Lathan v. Brown, 7 Vet. App. 359, 366 (1995) and Tirpak, in the context of the word "could" in an etiological opinion, stated that Tirpak did not stand for the proposition that a medical opinion must be expressed in terms of certainty in order to serve as the basis for a well-grounded claim. In consideration of the context of the words used in the medical etiological opinion, the Board notes that the Court has in other context found the medical opinion speculative or of no probative value. In Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992), the Court found evidence favorable to the veteran's claim that does little more than suggest a possibility that his illnesses might have been caused by service radiation exposure is insufficient to establish service connection; in Obert v. Brown, 5 Vet. App. 30, 33 (1993), a physician's statement that the veteran may have been having some symptoms of multiple sclerosis for many years prior to the date of diagnosis was deemed speculative; in Perman v. Brown, 5 Vet. App. 237, 241 (1993), an examining physician's opinion to the effect that he could not give a "yes" or "no" answer to the question of whether there is a causal relationship between emotional stress associated with service-connected post-traumatic stress disorder and the later development of hypertension was "non-evidence"; and in Bloom v. West, 12 Vet. App. 185 (1999), the Court held that a physician's opinion the veteran's time as a prisoner of war "could have" precipitated the initial development of a lung condition, by itself and unsupported and unexplained, was "purely speculative"; in Bostain v. West, 11 Vet. App. 124, 128 (1998), the Court held that a physician's opinion that an unspecified preexisting service-related condition "may have" contributed to the veteran's death was too speculative to be new and material evidence. As there is no competent medical evidence of record to demonstrate a nexus between any disease or injury during service, including a kidney disorder, and the veteran's currently diagnosed duodenal ulcer, the Board must find that the veteran's claim of entitlement to service connection for a duodenal ulcer is not well grounded. 38 U.S.C.A. § 5107(a). As the veteran's claim does not even cross the threshold of a being a well-grounded claim, a weighing of the merits of this claim is not warranted, and the reasonable doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). II. Rating: Residuals of Right Knee Injury Initially, the Board notes that the veteran has presented a claim of appeal of the initial assignment of rating for service-connected residuals of right knee injury that is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim as to this issue that is plausible. An appeal from an award of service connection and initial rating is a well-grounded claim as long as the rating schedule provides for a higher rating and the claim remains open. See Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). The Board is satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (1999). 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. 38 C.F.R. § 4.20 (1999). Diagnostic Code 5258 provides that for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint, a 20 percent rating is appropriate. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides that for removal of semilunar cartilage which is symptomatic, a 10 percent rating should be assigned. 38 C.F.R. § 4.71a. By his October 1995 notice of disagreement (Statement in Support of Claim and Application for Compensation, which was received within one year of notice of the October 1994 rating decision), the veteran appealed the RO's May 1996 initial determination of rating for service-connected injury of the right leg; thus, this is an appeal from the original assignment of a disability rating. Therefore, the issue in this veteran's case presents an "original claim" as contemplated under Fenderson v. West, 12 Vet. App. 119 (1999) (at the time of an initial rating, separate or "staged" ratings may be assigned for separate periods of time based on the facts found) rather than a claim for an "increased rating." In this case, even though a 10 percent rating was granted during the appeal of the initial assignment of a noncompensable rating, made effective to July 1994, the rating schedule provides for more than a 10 percent rating for knee disability under applicable diagnostic codes, and the veteran has not specifically indicated that he is satisfied with or has withdrawn his appeal. The Court has held that "on a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation." AB v. Brown, 6 Vet. App. 35, 38 (1993). The veteran contends, therefore, that a rating in excess of 10 percent is warranted for his service-connected residuals of right knee disability. At the personal hearing in June 1996, the veteran testified regarding the right knee disability that: soon after the initial surgery following right knee injury in service he experienced sharp pains; it continued to hurt him when he was working with U.S. Steel, and continued to get worse with age; he had frequent, but not daily, pain; a doctor at work had prescribed him a leg brace; he experienced instability, weakness, and locking; and he took over-the-counter medications for the pain. The evidence of record reflects that in service in February 1970 the veteran injured his right knee when he was thrown from a truck and his right knee was pinned under the truck. His complaints over the next few months were of locking with pain along the medial joint line. A right knee meniscectomy was accomplished in April 1970. In May 1970 the veteran was found to have 0 degrees of extension and 130 degrees of flexion of the right knee, with a trace of effusion. The final diagnosis was right knee medial meniscus tear. Private medical records reflect that in June 1992 the veteran had full range of motion of the extremities with edema. During VA hospitalization from July 1994 to July 1995, the veteran reported a history of right knee injury secondary to an accident, with torn ligament, repaired, which was treated symptomatically. In August 1994, the veteran filed a claim for service connection for an injury to the right leg in service in 1970. A VA orthopedic examination in February 1996 noted the veteran's reporting of "arthritis," especially a pain in the knee and a wooden feeling in the right leg below the knee, that he no longer wore a knee brace, he applied heat when he had severe pain, and he was not taking medication for his knee problem. Examination revealed a scar on the right knee and right thigh above the knee, flexion to 130 degrees on the right, right mid thigh 1/4 inch smaller than the left, and right mid calf 1/4 inch larger than the left. X-rays revealed no degenerative changes of the right knee. The conclusion was a history of medial and collateral ligament tear, status post surgical repair, healed, with slight residual limitation of motion. The Board notes that the veteran's right knee disability has been rated under Diagnostic Code 5010, which provides for ratings for traumatic arthritis, confirmed by X-ray evidence, which is productive of pain or limitation of motion. However, although the veteran experienced trauma to his right leg in service, he has never been diagnosed with arthritis of the right knee. VA hospitalization from 1994 to 1995 revealed left knee arthritis, which is not service connected, but revealed no findings of right knee arthritis. X-ray findings in February 1996 specifically revealed no degenerative changes. The Board finds that the more appropriate Diagnostic Codes are 5258 and 5259, which involve the same anatomical localization of the lateral and medial meniscus of the knee, and encompass the same functions affected by damaged or removed cartilage of the knee. 38 C.F.R. § 4.20. The evidence of record reflects that the veteran's service- connected residuals of right knee injury, during the entire period of the veteran's current appeal, have been manifested primarily by status post surgical repair of medial and collateral ligament tear, which is healed, with limitation of flexion to 130 degrees, with infrequent pain. Upon consideration of all the evidence of record, including objective findings and the veteran's subjective complaints, the Board finds that the symptomatology attributable to the veteran's service-connected residuals of right knee injury warrant no more than the currently assigned 10 percent rating. A 10 percent rating under Diagnostic Code 5259, the maximum rating provided, contemplates that the knee disability will be symptomatic. 38 C.F.R. § 4.71a. In this veteran's case, the symptomatology encompassed by a 10 percent rating includes only slight limitation of motion, infrequent pain, and the absence of other significant underlying right knee pathology. While effusion was noted in 1992, it was not noted upon more recent examinations. In this regard, the Board notes that, at the personal hearing, in response to questions by his representative, the veteran testified that he had frequent pain, instability, weakness, and locking, had been prescribed a leg brace, and took over the counter medications for pain. However, the clinical evidence of record does not corroborate his subjectively reported complaints at the hearing. Just four months before, at the February 1996 VA compensation examination, the veteran had reported that he no longer wore a knee brace, and was not taking medication for the right knee problem. Even at the hearing, the veteran admitted that he did not have daily pain. Upon clinical examination at the February 1996 examination, no signs of later-reported instability or weakness or locking were found, as reflected by clinical findings of no hyperextensibility, lateral bending, forward bending, slipping, other abnormal joint motion, no crepitation, and no evidence of abnormal joint spaces, dislocation, or degenerative changes. With regard to weakness, the examination specifically found only 1/4 inch difference in thigh circumference, while the mid-calf circumference on the right was even larger than the left, with symmetrical reflexes. With regard to pain, the veteran was able to stand, walk on toes and heels, squat well, and rise again without evidence of difficulty. The Board finds the clinical findings of record, especially considered in the context of the history of the right knee disability, to be more highly probative than the veteran's general statements entered later on appeal at the personal hearing. Based on the veteran's reported complaints, the Board has also considered a rating of his right knee disability under Diagnostic Code 5258, which provides that for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint, a 20 percent rating is appropriate. 38 C.F.R. § 4.71a. However, notwithstanding the veteran's more recently reported symptomatology, as the analysis above demonstrates, the veteran's right knee disability is not productive of impairment manifested by frequent episodes of locking, pain, or effusion into the joint. In light of the measure of minimal limitation of motion, with only slight limitation of motion of right knee flexion and full extension, and no frequent episodes of pain, or objective pain with motion, and minimal clinical findings, the Board finds that the veteran's subjective complaints of pain with activity are not productive of limitation of motion so as to warrant a rating in excess of the currently assigned 10 percent rating for right knee disability. See 38 C.F.R. §§ 4.40, 4.71a, Diagnostic Codes 5260, 5261; DeLuca v. Brown, 8 Vet. App. 202 (1995). For these reasons, the Board must find that the schedular criteria for a rating in excess of 10 percent for residuals of right knee injury have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5258, 5259. The evidence does not demonstrate that a rating in excess of 10 percent is warranted for any period of time from the date of the veteran's claim to the present so as to warrant a "staged" rating. ORDER The veteran's claim for service connection for a duodenal ulcer, having been found to be not well grounded, is denied. A rating in excess of 10 percent for service-connected residuals of right knee injury is denied. BRUCE KANNEE Member, Board of Veterans' Appeals