BVA9505997 DOCKET NO. 93-07 294 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for heart disease. 2. Entitlement to service connection for multiple joint arthritis. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral presbyopia. 4. Entitlement to an increased evaluation for loss of anal sphincter control, currently evaluated as 60 percent disabling. 5. Entitlement to an increased (compensable) evaluation for chondromalacia of the right knee. 6. Entitlement to an increased (compensable) evaluation for chondromalacia of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from September 1948 to May 1952 and from June 1954 to November 1970. The claims file contains a report of a rating decision dated in December 1970 denying entitlement to service connection for bilateral presbyopia on the basis that the veteran had a constitutional or developmental abnormality, which was not a disability for which service connection may be granted. The veteran was notified of the above determination by letter dated in December 1970, but he did not file a timely appeal. The claims file contains a report of a rating decision dated in October 1976, in relevant part, denying entitlement to service connection for multiple joint pains. The October 1976 RO letter to the veteran pertaining to the above determination did not include notification of the denial of entitlement to service connection for multiple joint pains. The current appeal arose from a July 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The RO determined that new and material evidence had not been submitted to reopen previously denied claims of entitlement to service connection for bilateral presbyopia and multiple joint arthritis, denied entitlement to service connection for heart disease, and denied entitlement to increased evaluations for loss of anal sphincter control and bilateral knee chondromalacia. The above determination was affirmed by the RO when it entered a rating decision in September 1992. In view of the fact that the appellant was not notified by the RO of the October 1976 rating decision denying entitlement to service connection for multiple joint disease, the Board of Veterans' Appeals (Board) will adjudicate the current appeal on a de novo basis. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service medical records contain sufficient evidence of onset of heart disease, bilateral presbyopia, and multiple joint arthritis as to warrant grants of entitlement to service connection. He further avers that his loss of anal sphincter control is virtually total thereby warranting a grant of a 100 percent evaluation. The claimant further argues that his bilateral knee chondromalacia is sufficiently disabling so as to warrant grants of entitlement to increased (compensable) 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 has not submitted evidence of well grounded claims for service connection for multiple joint arthritis and heart disease, and that the preponderance of the evidence is against a finding that new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral presbyopia and for grants of increased evaluations for loss of anal sphincter control bilateral knee chondromalacia. FINDINGS OF FACT 1. The claim for service connection for heart disease is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. The claim for service connection for multiple joint arthritis is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 3. In December 1970, the RO denied entitlement to service connection for bilateral presbyopia, finding that the veteran had a constitutional or developmental abnormality, a disorder for which service connection may not be granted. 4. Additional evidence submitted since then consists of a duplicate of a service medical prescription for eyeglasses and a VA outpatient treatment report noting that eyeglasses were ordered. 5. The additional evidence submitted since the December 1970 rating decision, when viewed in the context of all the evidence of record, does not raise a reasonable possibility of changing the prior decision. 6. The veteran does not have complete loss of anal sphincter control. 7. The June 1992 VA orthopedic examination report shows that both knees were normal on clinical examination and on the basis of x-ray study. CONCLUSIONS OF LAW 1. The claim for service connection for heart disease is not well grounded. 38 U.S.C.A. § 5107. (West 1991). 2. The claim for service connection for multiple joint arthritis is not well grounded. 38 U.S.C.A. § 5107. 3. The decision of the RO in December 1970, denying entitlement to service connection for bilateral presbyopia, is final. 38 U.S.C.A. §§ 5107, 7105; 38 C.F.R. § 3.104(a) 1994). 4. Evidence received since the RO denied entitlement to service connection for bilateral presbyopia in December 1970 is not new and material, and the veteran's claim for that benefit has not been reopened. 38 U.S.C.A. §§ 5108; 38 C.F.R. § 3.156(a), 3.303(c). 5. The criteria for an evaluation in excess of 60 percent for loss of anal sphincter control have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 4.7, 4.114, Diagnostic Code 7332. 6. The criteria for an increased (compensable) evaluation for right knee chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.71(a), Diagnostic Codes 5257, 5260, 5261. 7. The criteria for an increased (compensable) evaluation for left knee chondromalacia have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.71(a), Diagnostic Codes 5257, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for heart disease and multiple joint arthritis. 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. Derwinski, 5 Vet.App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his claims for service connection for heart disease and multiple joint arthritis are not well grounded, and should be dismissed. Service connection may be granted for any disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107. If not shown in service, heart disease and multiple joint arthritis may be service-connected on a presumptive basis if shown to be disabling to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.307, 3.309. Where the determinative issue involves 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 medical health professional and does not constitute competent medical authority. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). 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 claims not well grounded. With respect to the issue of entitlement to service connection for heart disease, the Board notes that service medical records show that in March 1963, the veteran reported with complaints of chest pain which were constant and nonradiating in nature. They were increased by motion and coughing. A physical examination and chest x-ray were reported as normal. When examined in June 1970, the veteran reported that he had occasional left anterior chest pain after eating. On examination there was a normal sinus rhythm without murmurs or gallops on auscultation of the heart. The chest X-ray was normal. The electrocardiogram revealed a left axis deviation. Heart disease was not diagnosed. The service medical records are negative for any finding of heart disease. A September 1974 VA outpatient treatment report shows the veteran reported with complaints of right chest pain with cough and inspiration. No abnormalities of the heart were found when the veteran underwent a general medication examination by VA in July 1976. The claims file contains a report of a private hospital summary for admission of the veteran in February 1980. It was reported that he had suffered a heart attack in June 1978. He subsequently had infarct extension and apparently right-sided failure. Four weeks prior to the current admission, unstable angina occurred, manifested by pain at rest. The discharge diagnoses were ischemic heart disease; status post myocardial infarction with probable right ventricular myocardial infarction, unstable angina pectoris, and borderline low output state, possibly related to over-diuresis in the face of right ventricular dysfunction. A letter dated in May 1984 from a private physician noted the veteran had sustained an acute myocardial infarction in 1978. An April 1989 report of private consultation shows the veteran first became aware of heart disease in 1978 when he suffered a myocardial infarction. The Board's evaluation of the evidence of record does not permit the conclusion that heart disease originated in service. The service medical records contain no finding of heart disease. Heart disease was initially shown in 1978, eight years after the veteran's separation from active service. The veteran has submitted no competent medical evidence to show that heart disease originated in active service. No VA or non-VA medical health professional has determined that the post service reported heart disease is related to any symptomatology reported in service. The veteran has failed to present a well ground claim, and his appeal as to this issue must be dismissed. As to service connection for multiple joint arthritis, the Board observes that during service the veteran was treated on occasion for complaints of multiple joint pain, and a diagnostic impression of bilateral knee arthritis was furnished in 1968 to account for his symptoms. However, radiographic studies in service never demonstrated or confirmed the presence of arthritis in any joint. A June 1970 hospital report shows the veteran underwent extensive diagnostic studies. Multiple joint arthritis symptomatology was not complained of nor was any multiple joint disease found. VA outpatient treatment reports dated in the 1970's include multiple joint symptomatology. Calcification of the 5th lumbar vertebral body was reported in October 1974. A June 1976 x-ray of the lumbosacral spine disclosed slight narrowing of the disc space at the L4-5 level. Although the veteran complained of multiple joint symptomatology at a July 1976 VA examination, multiple joint disease was not found. An August 1976 VA consultation report shows that the veteran's longstanding complaints of multiple joint pain suggested syndrome of palindromic rheumatism, but this was doubted. A November 1978 VA orthopedic examination concluded in a finding of rule out arthralgia's, arthritis, or rheumatoid arthritis. A June 1992 VA examination was negative for multiple joint arthritis. As was the case with heart disease, the veteran has presented no cognizable competent medical evidence to show that he currently has multiple joint arthritis related to service. His claim is not well grounded and accordingly must also be dismissed. The Board recognizes that the appellant's claims have 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 his claims 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 claims, the Board has not burdened the veteran with a prior final adjudication on the merits. Thus, if he is able to submit well grounded claims 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 claims were well grounded, accorded him greater consideration than his claims in fact warranted under the circumstances. Bernard. To remand the case to the RO for consideration of the issue of whether the appellant's claims are 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). II. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for bilateral presbyopia. With respect to the claim of entitlement to service connection for bilateral presbyopia, the Board does not need to reach the question whether or not this claim is well grounded because the law concerning awards of service connection for bilateral presbyopia are dispositive. In this regard, 38 C.F.R. § 3.303(c) provides that bilateral presbyopia is not a disease or injury within the meaning of applicable legislation governing the awards of compensation benefits. As such, regardless of the character or the quality of the evidence which the veteran could submit, bilateral presbyopia cannot be recognized as a disability under the law. The evidence which was of record at the time of the pervious RO rating decision denying entitlement to service connection for bilateral presbyopia in December 1970 consisted of the service medical records noting bilateral presbyopia. The additional evidence which has been submitted since the December 1970 RO rating decision denying entitlement to service connection for bilateral presbyopia consists of a duplicate of a service medical prescription for eyeglasses, and a VA outpatient treatment report dated in March 1975 noting that eyeglasses had been ordered. After a review of the record, the Board concludes that the additional evidence is not both "new" and "material." Accordingly, the veteran's claim is not reopened and the RO's December 1970 rating decision remains final. "New and material evidence" means "evidence not previously submitted...which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim." 38 C.F.R. § 3.156(a). The additional evidence in the veteran's case is not both new and material in nature as it is merely cumulative of evidence previously of record and there is no possibility that this additional evidence, when considered in the context of all the evidence, both new and old, would change the outcome of the December 1970 RO rating decision denying entitlement to service connection for bilateral presbyopia. Colvin v. Derwinski, 1 Vet.App. 171 (1991). In this regard, the Board observes that the evidence consisting of a duplicate of a service medical prescription for eyeglasses and a VA outpatient treatment report noting that glasses were ordered, does not in any way refute the RO's previous conclusion in December 1970 that the veteran's bilateral presbyopia is not recognized as a disability for VA compensation purposes. 38 C.F.R. § 3.303(c). III. Entitlement to an increased evaluation for loss of anal sphincter control, currently evaluated as 60 percent disabling. The Board finds that the appellant's claims of entitlement to increased evaluations for his loss of anal sphincter control and bilateral knee chondromalacia are well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that it is at least plausible that these disabilities have 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 loss of anal sphincter control. 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. A review of the service medical records discloses that the appellant began to develop a perianal fistula in 1955. A fistulectomy was performed. However, the appellant had recurrence and underwent repeated proctologic procedures. As a result he developed incontinence of the anal sphincter with occasional loss of control. The RO granted entitlement to service connection for loss of anal sphincter control which was assigned a 30 percent evaluation when it entered a rating decision in December 1970. An October 1971 VA examination concluded in a relevant diagnosis of loss of anal sphincter control, incontinence, partial, post surgical. The RO granted an increased evaluation of 60 percent for loss of anal sphincter control when it issued a rating decision in October 1971. A July 1976 VA examination concluded in a relevant diagnosis of partial loss of anal sphincter control. A November 1978 VA examination concluded in a relevant diagnosis of status post surgery for fistula in ano and perianal abscess with resulting scarring in the anal canal, patulous anus and partial loss of anal sphincter control. At a June 1992 VA examination the veteran reported an almost constant problem of soiling himself due to his rectal problem. He constantly wore a small pad. On examination was seen evidence of soiling on the pad the claimant was wearing. On occasion he had a problem with diarrhea. On those occasions he was unable to leave home because of the complete lack of control. A clinical inspection of the anal area disclosed significant scarring and almost complete absence of an external sphincter muscle tone. The examiner diagnosed bowel incontinence secondary to multiple surgeries. The veteran is rated as 60 percent disabled for his loss of anal sphincter control under diagnostic code 7332 of the VA Schedule for Rating Disabilities. The 60 percent evaluation is predicated on impairment of sphincter control with extensive leakage and fairly frequent involuntary bowel movements. The 100 percent evaluation for impairment of sphincter control requires complete loss of sphincter control. The Board's evaluation of the evidentiary record does not permit the conclusion that the appellant's loss of anal sphincter control has increased in severity and is now productive of complete loss of sphincter control. In this regard, the Board observes that when examined by VA in June 1992, there was reported to be evidence of soiling on the pad he was wearing, and he did complain of occasional diarrhea. However, it is apparent that he has not yet suffered total loss of control of his anal sphincter on the basis of his medical history and direct clinical inspection of the anal area. No question has been presented as to which of two or more evaluations would more properly evaluate the severity of the veteran's loss of anal sphincter control. 38 C.F.R. § 4.7. Loss of anal sphincter control has not rendered the veteran's disability picture unusual or exceptional in nature. It has 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). It is the judgment of the Board that the medical evidence of record does not support a grant of an increased evaluation for loss of anal sphincter control. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.114, Diagnostic Code 7332. IV. Entitlement to increased (compensable) evaluations for bilateral knee chondromalacia. The service medical records show that the veteran, as a result of mild tenderness to pressure under both patellae, probably had chondromalacia at the time of his retirement examination. The RO granted entitlement to service connection for bilateral knee chondromalacia which was assigned a noncompensable evaluation when it issued a rating decision in December 1970. An October 1971 VA examination concluded in a finding of chondromalacia, patellae, not confirmed, by history only. X-rays of both knees were interpreted as negative for any abnormalities. A July 1976 VA orthopedic examination concluded in a finding of chondromalacia of both patellae, alleged. A November 1978 VA orthopedic examination disclosed a normal range of motion of both knees. X-rays of both knees were reported to reveal no significant radiologic abnormalities. The diagnosis was rule out arthralgia's, arthritis, or rheumatoid arthritis. At a June 1992 VA examination the veteran complained of daily pain in both knees and occasionally some swelling. The examiner noted that x-rays of both knees and the clinical examination of both knees were normal. The Board observes that the veteran's right knee chondromalacia is rated under diagnostic code 5260 of the VA Schedule for Rating Disabilities. The noncompensable evaluation contemplates limitation of right leg flexion to 60 degrees. A 10 percent evaluation may be assigned for limitation of right leg flexion to 45 degrees. This has not been shown on examination as the veteran has been reported to have no knee abnormalities and that includes no limitation of motion. The veteran's left knee chondromalacia is rated noncompensable under diagnostic code 5261. Such noncompensable evaluation is predicated on limitation of left leg extension to 5 degrees. A 10 percent evaluation may be assigned under this diagnostic code for limitation of left leg extension to 10 degrees. This has not been shown on examination as the veteran's knees were reported to be normal on VA examination and such finding means there was no limitation of motion. Increased evaluations for either leg under either diagnostic code are not warranted. Under diagnostic code 5257, a 10 percent evaluation may be assigned for slight recurrent subluxation or lateral instability of a knee. Such has not been shown on the basis of the medical evidence of record to date. While the veteran may complain of bilateral knee pain, no functional impairment due to such pain has been shown on examination as to warrant grants of increased (compensable) evaluations under the criteria of 38 C.F.R. § 4.40. No question has been presented as to which of two or more evaluations would more properly classify the severity of the veteran's bilateral knee chondromalacia. 38 C.F.R. § 4.7. Bilateral knee chondromalacia has not rendered the veteran's disability picture unusual or exceptional in nature and has not markedly interfered with employment. It has not required frequent inpatient care as to render impractical the application of regular schedular standards. 38 U.S.C.A. § 3.321(b)(1). In the absence of a demonstration of increased (compensable) disablement of either knee due to chondromalacia, the Board finds that the evidentiary record does not support grants of increased (compensable) evaluations for bilateral knee chondromalacia. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.71(a), Diagnostic Codes 5257, 5260, 5261. ORDER The claim for service connection for heart disease is dismissed. The claim for service connection for multiple joint arthritis is dismissed. New and material evidence not having been submitted to reopen the claim of entitlement to service connection for bilateral presbyopia, the benefit sought on appeal is denied. Entitlement to an increased evaluation for loss of anal sphincter control is denied. Entitlement to an increased (compensable) evaluation for right knee chondromalacia is denied. Entitlement to an increased (compensable) evaluation for left knee chondromalacia is denied. ALBERT D. TUTERA 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.