Citation Nr: 0001952 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 97-07 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a right hip disorder. 2. Entitlement to service connection for a low back disorder. 3. Entitlement to service connection for an eye disorder. 4. Entitlement to service connection for a left knee disorder. 5. Entitlement to a compensable disability rating for facial scars. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N. W. Fabian, Counsel INTRODUCTION The veteran had active duty from July 1975 to January 1978. These matters come to the Board of Veterans' Appeals (Board) from an October 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO denied entitlement to service connection for a low back disorder, a right hip disorder as having been incurred in service or as secondary to a service-connected right knee disorder, a seizure disorder, and eye spasms. The veteran perfected an appeal of that decision. In a January 1999 rating decision the RO granted entitlement to service connection for a seizure disorder, and the Board finds that that issue is no longer within its jurisdiction. See Hamilton v. Brown, 4 Vet. App. 528 (1993)(en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (a notice of disagreement ceases to be valid if the benefit sought on appeal is granted by the RO). In a December 1982 rating decision the RO denied entitlement to service connection for a bilateral knee disorder, and granted service connection for facial scars and assigned a noncompensable rating for the disorder. The veteran perfected an appeal of the denial of service connection and the assigned rating. The prior appeal was certified to the Board, and in July 1984 the Board remanded the issues on appeal for additional development. While the appeal was pending at the RO, in a January 1985 rating decision the RO granted service connection for a right knee disorder, but failed to return the case file to the Board for consideration of the remaining issues. The Board finds that because all of the benefits sought on appeal were not granted by the RO, and the veteran has not withdrawn his appeal of the remaining issues, the issues of entitlement to service connection for a left knee disorder and a higher disability rating for facial scars remain in contention. Hamilton, 39 F.3d at 1574. The issue of entitlement to a compensable disability rating for facial scars will be addressed in the remand portion of this decision. This case was previously before the Board in August 1999, at which time it was remanded to the RO to afford him the opportunity for a hearing. That development has been completed and, the case returned to the Board for consideration of the veteran's appeal. FINDINGS OF FACT 1. The claims of entitlement to service connection for a right hip disorder, a low back disorder, and an eye disorder are not supported by competent medical evidence showing that the disorders are related to an in-service disease or injury or a service-connected disability. 2. The claim of entitlement to service connection for a left knee disorder is not supported by competent medical evidence showing that the veteran currently has a medical diagnosis of a left knee disability. CONCLUSION OF LAW The claims of entitlement to service connection for a right hip disorder, a low back disorder, an eye disorder, and a left knee disorder are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Background The veteran's service medical records show that on entry into service in July 1975 he had defective vision, with uncorrected visual acuity in both eyes of 20/25. No other relevant abnormalities were shown. An August 1975 accident report shows that the veteran was involved in a motor vehicle accident when the car he was driving left the roadway and struck a telephone pole. An August 1975 VA hospital summary indicates that he was involved in a motor vehicle accident with a blow to the head and chest. On physical examination he was found to have a forehead laceration and a bruised chest. An X-ray study revealed a fractured sternum, and an electrocardiogram (EKG) showed a mild heart contusion. As the result of a neurological evaluation no significant head injury was found, and the forehead laceration was closed. He was observed for two days following the accident, and discharged with a stable EKG. In October and November 1975 he complained of bilateral leg pain with marching and running, and examination revealed no abnormalities with the exception of crepitus in the right knee. In January 1976 he complained of bilateral knee pain, and the treating physician provided a diagnosis of chondromalacia patella following a physical examination, but did not indicate whether the disorder was present in both knees or only the right knee. All subsequent complaints and clinical findings documented in the service medical records pertained only to the right knee, for which service connection has been granted. The service medical records indicate that the veteran complained of low back pain in February 1976, and examination revealed muscle spasm in the lumbar area. His complaints at that time were assessed as a lumbar strain. In August 1977 he reported having pain in his back for one day after lifting a stove, and examination again revealed muscle spasm in the low back. An X-ray study of the lumbosacral spine was negative. In January 1978 he again complained of pain in the middle and low back after lifting a heavy box, which was assessed as a possible muscle contusion. An X-ray study of the skull in March 1976 revealed no abnormalities. In conjunction with his October 1977 separation examination the veteran reported having eye trouble, a head injury, cramps in his legs, and a trick or locked knee. He also reported having been hospitalized following a motor vehicle accident in 1975. The comments regarding the reported symptoms by the examining physician show that there were no sequelae from the motor vehicle accident, that the veteran had muscle cramps secondary to exercise, and that he had received treatment for chronic knee strain. With the exception of decreased visual acuity, the physical examination revealed no relevant abnormalities. The service medical records make no further reference to any complaints or clinical findings pertaining to the claimed disabilities. The medical evidence documents that the veteran has for many years complained of constant, unbearable pain "all over his body," which complaints the treating physicians described as vague and most of which were not supported by any objective clinical signs. His complaints were generally attributed to drug seeking behavior, attempting to obtain hospital admission, or malingering. Private hospital records show that in March 1980 the veteran incurred a gunshot wound to the right buttock at the gluteal fold, with massive swelling and tenderness in the right thigh, injury to the right superficial femoral artery, and the development of compartment syndrome. The injury required surgical treatment by grafting of the artery, a lateral compartment fasciotomy, and a skin graft to the right leg. An August 1980 private treatment record indicates that the veteran complained of spasm pain in his back, but apparently no examination was conducted and no diagnosis was provided. VA treatment records indicate that in August and September 1982 the veteran reported having injured both knees during service, with his right knee symptoms being worse than those in the left knee. An X-ray study of the knees was negative for any abnormalities. Examination of the knees in September 1982 revealed mild clinical findings indicative of chondromalacia patella, but it is unclear from the examination report the knee to which the findings pertained. An August 1984 treatment record indicates that the 1980 gunshot wound to the right lower extremity resulted in vascular and neurological damage to the right leg. An August 1984 hospital summary shows that the veteran had an eight- month history of Grave's disease with hyperthyroidism and ophthalmopathy, manifested by bulging of the eyes, blurred vision, dryness, double vision, and headaches. An X-ray study of the skull at that time showed no evidence of a fracture or other abnormality. During a September 1984 VA orthopedic examination the veteran denied having injured his left knee, and he had no complaints pertaining to the left knee. As the result of an examination the orthopedist provided a diagnosis of internal derangement of the right knee, for which the RO granted service connection in January 1985. The right knee disability was rated as 10 percent disabling effective in August 1982. In conjunction with a May 1985 VA examination the veteran again denied having any complaints pertaining to the left knee. VA treatment records indicate that in September 1985 he reported having injured his right hip the previous day. His complaints were assessed as musculoskeletal pain. A December 1986 treatment record shows that the veteran complained of chronic bilateral knee pain, with no diagnosis of a knee disability, and that he was being "weaned off" of Tylenol #3. VA treatment records also show that in March 1989 the veteran complained of chronic pain in his right leg of 11 years in duration. In August 1990 he stated that he had injured his back in a fall, resulting in low back pain. An X-ray study at that time showed a fracture of the right L1 transverse process, and his complaints were assessed as muscular spasm, status post fall with fracture of the L1 transverse process. Later in August 1990 he reported having pain in his low back following a motor vehicle accident that occurred two hours earlier, which was assessed as a back strain. In October 1990 he complained of pain in both knees after falling three or four days previously, with reported prior trauma to both knees. An X-ray study of the knees at that time was shown to be normal, and no diagnosis of a left knee disorder resulted from his complaints. In April 1991 he again complained of low back pain of one week in duration, and an X-ray study at that time was negative. In May 1991 the veteran reported having bilateral knee pain for 14 years. Examination of the left knee revealed no abnormalities, and no diagnosis of a left knee disability resulted from the examination. A July 1991 treatment record indicates that he reported having pain throughout his entire spine after falling that morning, but the treating physician found minimal objective evidence of disability. He again reported having fallen in September 1991, with resulting back pain. At that time the physician noted that the veteran had reported having fallen and injuring his back several times since January 1991, and that he had been given Tylenol #3 each time. An X-ray study of the spine was shown to be grossly normal, and his complaints were assessed as acute lumbar strain. An orthopedic evaluation in November 1991 did not result in a diagnosis of a chronic back disorder. During a VA orthopedic examination in December 1991 the veteran reported having increased instability in the right knee following the 1980 gunshot wound. As the result of a physical examination the orthopedist provided diagnoses of internal derangement of the right knee, severely symptomatic, and right anterior cruciate ligament insufficiency, mildly symptomatic. An X-ray study of the knees at that time showed no abnormalities. As the result of an X-ray study in February 1992, the veteran's low back complaints were diagnosed as degenerative joint disease. A March 1992 treatment record indicates that the veteran had fallen in the bathtub in August 1990 and hit the back of his head. VA treatment records indicate that the veteran continued to receive medication for his back pain. Treatment records from the VA ophthalmology clinic show that the veteran received ongoing treatment for the eye problems associated with Grave's disease, including exophthalmos, decreased range of motion of the eye muscles, progressively decreasing visual acuity, and eye pain. He also received treatment for glaucoma. In August 1986 he underwent scleral graft implantation to all four eyelids due to an extreme stare with baring of the sclera of both eyes due to Grave's ophthalmopathy. Following the surgery his eyelids were found to be in good position, with no sclera showing in either eye. In conjunction with a March 1993 VA hospitalization the veteran reported having been injured in a motor vehicle accident in 1975 that resulted in a plate being put in his head. He also reported having become unconscious after colliding with someone while playing basketball in 1976. The VA treatment records also show that in February 1996 the veteran reported having dislocated his right hip in 1976, with increased right hip pain. His complaints at that time were attributed to severe arthritis of the hip. In March 1996 he again reported having injured his right hip while in service, and a magnetic resonance image (MRI) at that time revealed evidence of avascular necrosis versus a lymphoma. In May 1996 his complaints of pain in the right hip were assessed as osteonecrosis following an X-ray study. In a May 1996 medical report his VA physician stated that he had avascular necrosis of the right hip, but did not provide any etiology for the disorder. In May 1996 the veteran claimed entitlement to service connection for his back disorder, which he claimed to have resulted from the back injuries that he incurred during service. He also claimed entitlement to service connection for his right hip disability, and asserted that the hip disorder was caused by the back disorder. In September 1996 statements he reported that his back, hip, and both knees had been badly injured while he was in service, and that he continued to have pain in those joints following his separation from service. He stated that he dislocated both knees and incurred a skull fracture in the 1975 motor vehicle accident, and that he had "eye spasms" as a result of the accident. He also stated that he injured his right hip when a generator fell on his side, causing injury to his right knee and the application of a cast up to his hip for six months. A November 1996 VA treatment record indicates that the veteran had a history of chronic low back pain secondary to a fall in the bathtub in 1991, which had been diagnosed as a muscle strain; that he had chronic pain in the right hip and knee secondary to a gunshot wound to the proximal right lower extremity; and that he had a history of instability in the right knee. In conjunction with a November 1996 VA hospitalization the veteran reported having incurred three back injuries, two knee injuries, two head injuries, and two hip injuries during service. He also reported having pain from these injuries after his separation from service, which caused him to consume large amounts of alcohol and to use other drugs. In his February 1997 substantive appeal the veteran asserted that the motor vehicle accident that occurred during service, which resulted in head injuries, had caused his eye problems. He also contended that he had injured his left knee and right hip during service. The report of a March 1997 X-ray study of the right hip indicates that the clinical findings resulting in the request for X-rays included a fall, and that the X-rays were requested to rule out a fracture. The X-ray study showed Class III avascular necrosis of the right femoral head with peripheral impacted pathological fracture of the right femoral head. During a March 1997 hearing the veteran testified that he received treatment for back problems many times while in service, that he reported having back problems when he was separated from service, and that he currently received treatment for back pain. He also testified that he was told by his physicians in December 1977 that he had a slipped disc in his back, which caused him to have spasms. He further testified that his right hip was bruised when a generator fell on his right knee while in service, but that tests performed at that time did not reveal any injury to the hip. He stated that his right hip disorder was caused by his right knee and back disability, and that he started having problems with the hip six or seven years after he was separated from service. The veteran further testified that he had eye spasms, which he described as a flutter that occurred when he had to keep his eyelids up for an extended period, as a result of the head injury that occurred in service. He also stated that the eye spasms became worse after he was separated from service and were complicated by his thyroid disease, which caused blurry vision. When asked whether he was currently having eye spasms, he responded that sunlight and trying to read caused pain in his eyes, and that he had difficulty lifting his eyelids. In a March 1998 statement the veteran reported having two surgeries to his head and one surgery to his back during service. In conjunction with an October 1998 VA examination the veteran reported having had a motor vehicle accident in August 1975 resulting in a head injury, dislocation of both knees, injury to his back, and bruising of the right hip. He also reported re-injuring both knees in a motor vehicle accident in 1977, which resulted in casting of the left knee. The examiner noted that the veteran had undergone a total right hip replacement in August 1997. An X-ray study of the lumbosacral spine and both knees in October 1998 revealed no abnormalities. II. Laws and Regulations The threshold question that must be resolved with regard to the claims is whether the veteran has presented evidence that the claims are well grounded. 38 U.S.C.A. § 5107(a); Epps v. Brown, 9 Vet. App. 341 (1996), aff'd, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied, 118 S.Ct. 2348 (1998). A well grounded claim is a plausible claim, meaning a claim that appears to be meritorious on its own or capable of substantiation. Epps, 126 F.3d at 1468. An allegation of a disorder that is service connected is not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). In order for a claim for service connection to be well grounded, there must be a medical diagnosis of a current disability, medical or lay evidence of the incurrence of a disease or injury in service, and medical evidence of a nexus between the in-service disease or injury and the current disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). Alternatively, the second and third elements can be satisfied by evidence showing that a disorder was noted during service or any applicable presumptive period, evidence of post- service continuity of symptomatology, and medical or, in some circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. In addition, if the claim for service connection pertains to a disease rather than the residuals of an injury, a well-grounded claim can be established by evidence showing a chronic disease in service or during any applicable presumptive period and present disability from that disease. See Savage v. Gober, 10 Vet. App. 488, 495-497 (1997); 38 C.F.R. § 3.303(b). A lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. Therefore, if the determinant issue is one of medical etiology or a medical diagnosis, competent medical evidence is generally required to make the claim well grounded. See Grottveit, 5 Vet. App. at 93. A lay person is, however, competent to provide evidence of an observable condition during and following service. Savage, 10 Vet. App. at 496. If the claimed disability relates to an observable disorder, lay evidence may be sufficient to show the incurrence of a disease or injury in service and continuity of the disorder following service. Medical evidence is required, however, to show a relationship between the current medical diagnosis and the continuing symptomatology. See Clyburn v. West, 12 Vet. App. 296 (1999). In determining whether the claim is well grounded, the evidence is generally presumed to be credible. See Nolen v. West, 12 Vet. App. 347, 350 (1999). If the veteran fails to submit evidence showing that his claims are well grounded, VA is under no duty to assist him in any further development of the claims. See Morton v. West, 12 Vet. App. 477 (1999), en banc denied July 28, 1999. VA may, however, dependent on the facts of the case, have a duty to notify him of the evidence needed to support his claims. 38 U.S.C.A. § 5103; see also Robinette v. Brown, 8 Vet. App. 69, 79 (1995). The veteran has not indicated the existence of any evidence that, if obtained, would make his claims well grounded. VA has no further obligation, therefore, to notify him of the evidence needed to support his claims. See McKnight v. Gober, 131 F.3d 1483, 1485 (Fed. Cir. 1997). III. Analysis The Board has reviewed the evidence of record and finds that the claims of entitlement to service connection for right hip, low back, left knee, and eye disorders are not well grounded. The veteran contends that all of these disorders resulted from injuries that occurred during service, or that the right hip disorder was caused by the back or right knee disorders. The medical evidence shows that the veteran has avascular necrosis of the right hip, degenerative joint disease of the lumbosacral spine, and Grave's ophthalmopathy with multiple manifestations. As a lay person the veteran is competent to provide evidence of the hip, back, and eye symptoms that he experienced during service. In addition, the service medical records document complaints and clinical findings pertaining to the low back. The Board finds, therefore, that the first and second Caluza elements have been satisfied regarding those claims. The veteran has not, however, provided any competent medical evidence showing that the currently diagnosed disabilities are related to the claimed in-service injuries or a service- connected disability. The veteran's assertions to that effect are not probative because the veteran is not competent to provide evidence of the etiology of a medical disorder. Grottveit, 5 Vet. App. at 93. The medical evidence does not provide any etiology for the low back disorder, and indicates that the eye disorder is due to Grave's disease and that the right hip disorder is due to the 1980 gunshot wound, not an in-service injury. Although the veteran has on numerous occasions told his physicians that the in-service injuries caused the current disabilities, the physician's recording of that assertion does not constitute medical evidence of a nexus to service. See Grover v. West, 12 Vet. App. 109 (1999) (evidence that is simply information recorded by a medical examiner, unenhanced by any medical comment by that examiner, does not constitute competent medical evidence of a nexus). The Board finds, therefore, that the third Caluza element has not been satisfied, and that the claims of entitlement to service connection for a right hip disorder, a low back disorder, and an eye disorder are not well grounded. See Wade v. West, 11 Vet. App. 302 (1998) (a claim for service connection is not well grounded in the absence of medical evidence of a nexus between the in-service disease or injury and the current disability). The medical evidence indicates that the veteran has complained of left knee pain on several occasions. No objective evidence of left knee pathology was found on examination, and the examinations did not result in a diagnosis of a left knee disorder. The Board finds, therefore, that the first Caluza element has not been satisfied regarding that claim, in that the veteran has not provided medical evidence of a current left knee disability. The Board has determined, therefore, that the claim of entitlement to service connection for a left knee disorder is not well grounded. See Rabideau v. Derwinski, 2 Vet. App. 141 (1992) (a claim cannot be well grounded in the absence of medical evidence of a current disability). ORDER The claims of entitlement to service connection for a right hip disorder, a low back disorder, an eye disorder, and a left knee disorder are denied. REMAND The veteran contends that the service-connected facial scars warrant a higher disability rating than has been assigned. He has not, however, been provided a VA examination in order to evaluate the severity of the service-connected scars since 1985. The Board finds, therefore, that a current medical examination is required. See Caffrey v. Brown, 6 Vet. App. 377 (1994) (the duty to assist requires that the veteran be provided a thorough contemporaneous medical examination). To ensure that VA has met its duty to assist the veteran in developing the facts pertinent to his appeal of the assigned rating, this issue is REMANDED to the RO for the following development: 1. The RO should obtain the names and addresses of all medical care providers, inpatient and outpatient, VA and private, who treated the veteran for facial scars since July 1997. After securing any necessary release, the RO should obtain copies of such records that are not in file. 2. The veteran should be afforded a VA dermatology examination to determine the severity of the facial scarring. The claims file and a copy of this remand should be made available to and be reviewed by the examiner in conjunction with the examination. The examination should include any diagnostic tests or studies that are deemed necessary for an accurate assessment. If the examiner finds that photographs would aid in the description of the facial scars, those photographs should be included with the report of the examination. The examiner should describe the facial scars in terms of their size, location, and any abnormal skin growth. The examiner should also determine whether the scars are poorly nourished with repeated ulceration, tender and painful on objective demonstration, or result in any functional limitations. The examiner should also provide an opinion on whether any disfigurement resulting from the facial scars is slight, moderate, severe, or exceptionally repugnant. 3. The RO should then review the claims file to ensure that all of the above requested development has been completed. In particular, the RO should ensure that the requested examination and opinions are in complete compliance with the directives of this remand and, if they are not, the RO should take corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any additional development deemed appropriate in addition to that requested above, the RO should re-adjudicate the issue of entitlement to a compensable disability rating for facial scars. If any benefit requested on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be given the opportunity to respond. The case should then be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran is advised that the examination requested in this remand is necessary to evaluate his claim and that a failure, without good cause, to report for a scheduled examination could result in the denial of his claim. 38 C.F.R. § 3.655 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. Mark D. Hindin Member, Board of Veterans' Appeals