BVA9507526 DOCKET NO. 93-05 930 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased evaluation for residuals of a left knee injury, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for a right knee disability. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. Reynolds, Associate Counsel INTRODUCTION The veteran served on active duty from February 1987 to February 1991. This appeal arises from rating decisions of March 1991 and April 1991 from the Waco, Texas, Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred when it denied an increased rating for residuals of a left knee injury. She alleges that this disability has increased in severity and that an increase in compensation is appropriate. The veteran also contends, in essence, that the RO erred when it denied service connection for a right knee disability. She specifically alleges that since she favors her service-connected left knee, her right knee bears more weight and should be made service-connected. 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 preponderance of the evidence is against the claim for an increased rating for residuals of a left knee injury. It is also the decision of the Board that evidence of a well grounded claim for service connection for a right knee disability has not been presented. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's increased rating claim has been developed. 2. Left knee disability is manifested primarily by mild stiffness of the left knee joint. 3. Satisfactory evidence tending to establish that the veteran has a right knee disability has not been presented. 4. With regard to the veteran's left knee disability, neither an exceptional nor unusual disability picture has been demonstrated with regard to that disability so as to render impractical application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for left knee disability are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. 3.321(b)(1), Part 4, Diagnostic Code 5257 (1994). 2. The veteran's claim for service connection for right knee disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Increased Evaluation for Residuals of a Left Knee Injury Initially, the Board finds that the veteran's increased rating claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, she has presented a claim that is plausible. She has not alleged that any records of probative value that may be associated with her claims folder and which have not already been sought are available. The Board accordingly finds that the duty to assist her, mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. Service connection for residuals of a left knee injury was granted by the Waco, Texas, RO by means of a rating decision dated in March 1991. A 10 percent evaluation was assigned at that time and is still currently in effect. The veteran contends that residuals of her left knee injury are of such severity as to warrant increased compensation. After a review of the record, however, the Board finds that her contentions are not supported by the evidence and that her claim fails. The severity of left knee disability is ascertained for VA rating purposes, by the application of the criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1994) (Schedule). Under Diagnostic Code 5257, the rating currently in effect contemplates slight, recurrent subluxation or lateral instability. A rating greater than that currently in effect is appropriate when there is moderate or severe, recurrent subluxation or lateral instability. Under Diagnostic Codes 5256, 5260, or 5261, a rating greater than that currently in effect may be assigned for ankylosis of the left knee, or limitation of motion of the left knee with flexion of the leg limited to 30 degrees, or extension of the leg limited to 15 degrees. The criteria for increased compensation are not satisfied. The report of a VA examination, dated in October 1991, indicates that there was no limitation of motion, effusion, or atrophy of the quadriceps muscles, with regard to the left knee. The examination also revealed crepitations of 1+ noted on flexion and extension, and laxity of 1+ of the left knee joint. In addition, a progress note from the VA outpatient clinic, El Paso, Texas, dated in February 1992, reported as medical history that the veteran's knee "has actually not been troubling her much in the last several months." The Board notes that VA outpatient reports, dated in August 1991, indicate that there was medial swelling with crepitus on movement of the left knee. The veteran lacked 15 degrees of full extension. These reports also indicate that the veteran reported the left knee was tender and swollen, and that the knee "pops" out five to six times per day. She was advised to resume use of a knee brace, and prescribed pain medication. In November 1991, the knee was noted to be doing better. Moreover, as mentioned above, the more recent February 1992 outpatient clinic progress note suggested that the veteran's knee had not been bothering her, and that she had been advised to report any effusion or recurrence of "real severe pain." In view of the foregoing, it is the opinion of the Board that the veteran's left knee condition has not worsened and that the current 10 percent evaluation, which contemplates slight, recurrent subluxation or lateral instability, and the veteran's current complaint of pain, is appropriate, and an increased rating for this disability is not warranted. Neither ankylosis of the left knee, nor limitation of motion of the left knee so as to warrant a higher evaluation, has been demonstrated Accordingly, the Board concludes that the preponderance of the evidence is against the veteran's claim for an increased rating for residuals of a left knee injury. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, Diagnostic Code 5257 (1994). In addition, the Board does not find that this disability presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that would render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1994) II. Entitlement to Service Connection for a Right Knee Disability. The threshold question that must be resolved with regard to each claim is whether the veteran has presented evidence that each claim is well grounded; that is, that each claim is plausible. If she has not, her appeal fails as to that claim, and the Board is under no duty to assist her in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 vet. App. 78 (1990). In the instant case, the medical evidence does not demonstrate that right knee disability is currently manifested. Since service connection can not be granted for a disability that is not currently shown, the Board must accordingly find that the claim for service connection for such a disability is not well grounded, and must be dismissed, since it does not present a question of fact or law over which the Board has jurisdiction. The report of the VA examination, conducted in October 1991, does not establish the existence of right knee disability. Although this report mentions the veteran's subjective complaints about pain in her right knee, it is devoid of any objective clinical finding that evidences the existence of right knee disability. The report revealed, with respect to the right knee, that there was no stiffness, limitation of motion , crepitation, effusion or laxity of the knee joint. There was no atrophy noted, and it was revealed that the veteran's gait was within normal limits. Likewise, an outpatient report dated in August 1991 showed the veteran to have full range of motion of the right knee, and no crepitus of the knee. Under the provisions of 38 U.S.C.A. § 1131 (West 1991), service connection can be granted, in part, for "disability resulting from personal injury suffered or disease contracted in the line of duty...."38 U.S.C.A. § 1131 (West 1991); see also 38 U.S.C.A. § 1110 (West 1110 (West 1991). It necessarily follows, however, that a disability or disease must be manifested for service connection to be granted. In the absence of evidence indicating the presence of a disability or disease, a claim for service connection therefor is not plausible, and accordingly not well grounded. The United States Court of Veterans' Appeals (Court), in a case in which a veteran sought service connection for hypertension, found that, "because of the absence of any evidence of current hypertension...appellant's claim is not plausible and, therefore, not well grounded." Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The Board notes that the veteran has commented about the pain in her right knee, however, the Court has held that unsubstantiated assertions are insufficient to provide a basis for establishing that a claim is well grounded. The Court has also held that claims that are not well grounded must be dismissed by the Board. The Court has stated that: a veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991); see Tirpak v. Derwinski, 2 Vet. App. 609, 610-611 (1992). If a claim is not well grounded, the [Board ] does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Boeck v. Brown, 6 Vet. App. 14, 17 (1993). In other words, the Court has held that, if a claim is not well grounded, the Board does not have jurisdiction over the question of whether the benefits sought on appeal is warranted. Boeck, at 17. Since a claim that is not well grounded does not present a question of fact or law over which the Board has jurisdiction, a claim that is not well grounded must be dismissed. 38 U.S.C.A. § 7105(d)(5) (West 1991). In the case now before the Board, as has been previously noted, the evidence does not demonstrate that right knee disability is currently manifested. Since it is not plausible that service connection can be granted for a disability that is not shown to exist, a claim for service connection for that disability is not well grounded. Accordingly, pursuant to judicial interpretation of the applicable statutory and regulatory provisions, the veteran's claim for service connection for right knee disability is dismissed. ORDER The claim for increased evaluation for residuals of left knee injury is denied. The claim for service connection for a right knee disability is dismissed. U. R. POWELL 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.