BVA9506186 DOCKET NO. 93-10 081 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder. 2. Entitlement to service connection for kidney stones. 3. Entitlement to service connection for a chronic respiratory disorder. 4. Entitlement to an increased rating for the residuals of a right knee injury, evaluated as 10 percent disabling. 5. Entitlement to an increased (compensable) rating for recurrent low back sprain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Pope, Counsel INTRODUCTION The veteran had honorable service from June 26, 1979 to October 10, 1983. The veteran also had active service from October 11, 1983 to August 7, 1986, at which time he received a dishonorable discharge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 1991 rating decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran and his representative contend, is essence, that service connection is warranted for a psychiatric disorder, kidney stones and asthma because they were incurred in or are the result of his honorable service from June 26, 1979 to October 10, 1983. It is also contended that the veteran's service-connected right knee and low back disabilities are each productive of greater impairment than reflected by the individual disability ratings currently assigned. 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 evidence of record supports grants of service connection for ureterolithiasis and allergic rhinitis, but that the preponderance of the evidence is against the claims of service connection for an acquired psychiatric disorder and asthma. The Board also finds that the preponderance of the evidence is against the claims for increased ratings for the residuals of a right knee injury and recurrent low back sprain. FINDINGS OF FACT 1. All relevant evidence referable to the current appeal has been requested by the RO. 2. The veteran's period of honorable service for the purposes of this appeal was from June 26, 1979 to October 10, 1983. 3. A psychiatric disorder was first diagnosed in October 1984; an acquired psychiatric disorder has not been shown to be related to the veteran's honorable service. 4. Calculi of the urinary system were suspected but undocumented in 1981 and 1983; a diagnosis of ureterolithiasis was confirmed in May 1984. 5. It is reasonable to attribute the urinary symptomatology manifested during the veteran's period of honorable service to his subsequently diagnosed ureterolithiasis. 6. The veteran's allergic rhinitis was initially manifested in 1981. 7. A chronic asthma was not present during the veteran's honorable service, and such disability has not been shown to be related to the veteran's honorable service. 8. The veteran has no more than slight impairment of the right knee with normal range of motion with pain requiring medication and occasional use of a cane. 9. The veteran has normal backward extension and lateral rotation of the lumbar spine, and forward flexion which brings his fingertips to within four inches of the floor, without objective characteristics of pain on motion. CONCLUSIONS OF LAW 1. The veteran's personality disorder is not a disease or injury within the meaning of applicable legislation providing for compensation benefits; an acquired psychiatric disorder did not result from a disease or injury incurred in or aggravated by the veteran's honorable peacetime service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1994). 2. Ureterolithiasis and allergic rhinitis were incurred during the veteran's honorable peacetime service. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. § 3.303. 3. Chronic asthma did not result from a disease or injury incurred in or aggravated by the veteran's honorable peacetime service. 38 U.S.C.A. §§ 1131, 5107 38 C.F.R. § 3.303. 4. A rating greater than 10 percent for the residuals of a right knee injury is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.71a, Codes 5256, 5257, 5260 and 5261 (1994). 5. A compensable rating for recurrent low back sprain is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Codes 5289, 5292 and 5295 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that the veteran's claims are well- grounded within the meaning of 38 U.S.C.A. § 5107, and that all relevant facts have been properly developed for this appeal. I. Service Connection Service connection may be granted for a disability which is shown to have been incurred in or aggravated by active service. 38 U.S.C.A. § 1131. For the showing of a 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." A continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic. When the fact of chronicity in service is not adequately supported, then a showing of continuity after service discharge is required to support the claim. 38 C.F.R. § 3.303(b). When a veteran has sufficient service and calculi of the kidney or bladder become manifest to a degree of 10 percent within one year from the date of termination of service, such disease shall be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. When a disease was not initially manifested during service or within the applicable presumption period, the appellant may establish the "required nexus" for service connection by evidence demonstrating a medical relationship between the current disability and the service. 38 C.F.R. § 3.303(d); Godfrey v. Derwinski, 2 Vet.App. 352, 356 (1992). The benefit of the doubt has been resolved in the veteran's favor. 38 U.S.C.A. § 5107. A. Acquired Psychiatric Disorder The veteran's service medical records for his period of honorable service from June 26, 1979 to October 10, 1983 are negative for findings of a psychiatric disorder. The medical records subsequent to the veteran's period of honorable service are negative for findings of a psychiatric disorder until an October 1984 psychiatric examination produced a diagnosis of adjustment disorder with mixed emotional features and borderline personality traits. A VA psychiatric examination in March 1991 produced diagnoses of borderline personality and adjustment disorder with mixed emotional features. While the Board acknowledges that the veteran's medical records confirm a diagnosis of borderline personality traits in November 1984 and there was a post-service diagnosis of borderline personality in March 1991, under the law, a grant of service connection and compensation for "personality disorders" is expressly proscribed by 38 C.F.R. § 3.303(c). Furthermore, while the medical records confirm diagnoses of adjustment disorder with mixed emotional features in November 1984 and March 1991, the veteran has submitted no competent evidence that such disorder, manifested and diagnosed many months after the veteran's honorable service, is related to service. As stated by the Court of Veterans Appeals, "establishing service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and [service]." Cuevas v. Principi, 3 Vet.App. 542, 548 (1992); Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992). The unsupported lay assertions presented by the veteran concerning such questions of medical diagnosis or causation are not competent evidence. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992). Accordingly, in the absence of evidence substantiating an acquired psychiatric disability until more than a year after the veteran's honorable period of service or competent evidence substantiating a nexus between such disability and his honorable service, the Board finds that the preponderance of the evidence is against the claim of service connection for an acquired psychiatric disability. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. B. Kidney Stones The veteran's medical records for his period of honorable service are negative for evidence indicative of a urinary calculi or related problems until August 1981 when he complained of non- radiating left flank pain. An examination of the abdomen disclosed left flank tenderness, but no point tenderness or guarding. A urology examination showed "[n]o calcification or obstruction." The examiner opined that the veteran could have "passed [a] small stone." A genitourinary clinic notation in October 1981 disclosed that X-ray studies showed no residual scar and no calyectasis or blunting. The assessment was "rule out relative UPJ obstruction." A "hydration infusion IVP (intravenous pyelogram)" with Lasix was planned in order to observe any reproduction of symptoms and sudden obstruction. A report of the hydration infusion IVP, conducted in early November 1981, revealed no abnormalities, although somewhat less than complete voiding of the bladder was noted. The veteran was hospitalized for several days in February 1983 with left flank pain, to rule out ureterolithiasis. It was noted that a 24 hour urine study was inadvertently discarded during the hospitalization. The final diagnosis was left flank pain - "suspected but undocumented nephrolithiasis." The medical records subsequent to the veteran's period of honorable service disclose that he was seen in the emergency room on May 10, 1984 with right flank pain. A urinalysis revealed occult blood. He was released to duty on May 11, 1984 with a diagnosis of ureterolithiasis. He was seen again on May 12 and May 13, 1984 for the continued right flank pain. A clinical notation on May 13 indicated that the veteran had recently "[p]assed small calculus" which were to be sent for analysis. He was catheterized at the hospital and released to duty on May 15, 1984. A May 30, 1984 report from a private laboratory disclosed that "two stones" had been received and analyzed, revealing a mass of eight milligrams, centers of 100 percent calcium phosphate and an outer layers of 75 percent calcium oxalate and 25 percent calcium phosphate. Subsequent medical records confirm the veteran's continued difficulties with urinary system calculi. During a March 1991 VA examination the veteran reported that his last hospital admission for stone extraction had been in June 1987 at the Kansas University Medical Center. He indicated that his stones had been diagnosed as calcium oxalate and that he was treated with Urised K and Hydrochlorothiazide. He reported that his urine showed red blood cells almost continuously and that he passed numerous stones spontaneously, the most recent about three weeks earlier. He reported that his last IVP had been approximately two years earlier. A physical examination was within normal limits. A IVP was reported as normal, with the exception of "[m]inimal elevation of the urinary bladder floor, perhaps representing a slight degree of prostatic enlargement...." The diagnoses were history of ureteral calculi; calcium oxalate stones, and nephrolithiasis by history. While the medical records during the veteran's honorable service do not substantiate a finding of calculi, it is quite apparent that he began having difficulty with "stones" or calculi as early as August 1981. The diagnosis of "suspected but undocumented" calculi in February 1983 is the first episode which documented hospitalization for an actual study, and appears to have be justified by the verified May 1984 diagnosis of ureterolithiasis. Although the clinical verification occurred several months after the veteran's period of honorable service, it difficult to separate such verification from the "suspected" episodes of calculi during such service. Accordingly, the Board finds that the veteran's difficulties with calculi in the ureter was initially manifested during his period of honorable service and that the evidence of record supports a grant of service connection for ureterolithiasis. The benefit of the doubt has been resolved in the veteran's favor. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. § 3.303. C. Asthma The veteran's medical records for his honorable service include a report of a June 1979 enlistment examination, which is negative for reports or findings of respiratory or allergy difficulties. The veteran was treated for rhinitis in June 1981 and for allergic rhinitis in September 1981. He received treatment for "allergies" in April 1982 and during one of several treatments for allergic rhinitis in May 1982 he reported a history of allergy symptomatology "last Fall." A battery of allergy tests in May 1982 confirmed positive reactions to several types of airborne pollen. In June 1983 the veteran was seen for continued coughing and wheezing. The assessment was probable asthma. Following pulmonary function tests, the examiner's assessment was "[r]eversible obstr[uctive] airway disease presenting as cough [with] min[imal] wheezing." The medical records subsequent to the veteran's honorable service disclose continued difficulties with episodic respiratory problems including allergy symptoms, bronchospasms and asthma. During a March 1991 VA pulmonary examination the veteran reported that he used "Alupent inhalations" as needed and had taken Theo- Dur in the past. He reported that he had occasional colds, which usually developed into bronchitis, for which he took "Robitussin and cough drops but [did] not use antibiotics." He also reported that he became short of breath during heavy physical exertion. A pulmonary system examination revealed no abnormalities. The diagnosis was bronchial asthma by history and record. Subsequent VA pulmonary function tests were reported as within normal limits. As noted, the veteran's allergic reactions were initially manifested in 1981 and subsequently diagnosed as allergic rhinitis. Since this disability was first shown during his honorable service, the Board finds that the evidence of record supports an allowance of service connection for allergic rhinitis. While the veteran asserts that he has asthma, and while the medical evidence shows treatment for disorders of the respiratory system including assessments and diagnoses of bronchospasms and asthma, it is not shown that asthma was chronic during the veteran's honorable service. In addition, the most recent pulmonary examination discloses no evidence of asthma. As previously stated, the unsupported lay assertions presented by the veteran concerning such questions of medical diagnosis or causation are not competent evidence. See Grottveit, 5 Vet.App. at 93; Espiritu, 2 Vet.App. at 494-95. Accordingly, in the absence of evidence substantiating chronic asthma during the veteran's honorable service or that the veteran currently has chronic asthma, the Board finds that the preponderance of the evidence is against the claim of service connection for asthma. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. II. Increased Ratings Disability evaluations are determined by the application of a schedule for rating disabilities. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. A. Right Knee The medical evidence discloses that the veteran received several injuries to his right knee during his honorable service. In May 1982 he was placed on limited duty due to a right knee disability. In June 1982 he reported a preservice history of an attenuated right anterior cruciate ligament and arthroscopy. An arthrogram of the veteran's right knee on June 7, 1982 was reported as showing an "[a]bsent anterior cruciate ligament which would be consistent with a cruciate ligament tear." On June 23, 1982 he was fitted for a right knee brace. During a March 1991 VA orthopedic examination the veteran reported that he wore a right knee brace to aid his ambulation, took Advil or Motrin for knee pain following physical exertion, and occasionally used a cane when the pain became severe. There was no indication of a limp in his gait. His right knee range of motion was reported as normal. The examiner noted "increased mobility" of the right knee when manipulated. The diagnosis was "[d]egeneration of the anterior cruciate ligament of right knee by history and some objective signs when the knee was manipulated." X-ray studies were reported as disclosing normal bone structure with the joint space well preserved. An April 1991 rating decision established service connection for the residuals of a right knee injury with increased mobility and absent anterior cruciate ligament, and assigned a 10 percent disability rating, effective from May 24, 1990, the date of receipt of the veteran's claim. The 10 percent rating was assigned under Diagnostic Code 5257 of the VA rating schedule which provides a 10 percent rating for slight impairment of the knee with recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate impairment with recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Code 5257. While the veteran asserts that his service-connected right knee disability is productive of greater impairment than reflected by the 10 percent rating currently assigned, it is rather apparent that he does not have the degree of impairment and recurrent subluxation or lateral instability which approaches the criteria required for a 20 percent rating under Diagnostic Code 5257. However, the VA is obligated to consider a claim for increase under any additional codes under which entitlement to an increase might potentially be established. Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). In this case, such consideration includes Diagnostic Code 5256 which provides disability ratings for ankylosis of the knee, Diagnostic Code 5260 which provides a 20 percent disability rating for limitation of knee flexion to 30 degrees, and Diagnostic Code 5261 which provides a 20 percent disability rating for limitation of knee extension to 15 degrees. 38 C.F.R. § 4.71a, Codes 5256, 5260 and 5261. Since the veteran has retained mobility of the right knee, a disability rating for ankylosis is not warranted. Furthermore, since the most recent medical evidence confirms normal range of motion of the right knee, a disability rating for limitation of right knee flexion or extension is not applicable. Therefore, upon review of all the evidence concerning the veteran's right knee disability, the Board finds that the preponderance of the evidence fails to substantiate that the impairment warrants a rating greater than the currently assigned 10 percent. B. Low Back Sprain The medical evidence discloses that the veteran received several injuries to his low back during his honorable service. On December 14, 1982 he was hospitalized for the recent onset of low back pain when he "turned to throw something away." An examination revealed limitation of forward flexion and backward extension. Straight leg raising was positive at 70 degrees bilaterally. There was paravertebral muscle spasm "from T8 to S1 bilaterally." There was no motor or sensory deficit. X-ray studies were reported as disclosing "a slight narrowing of the joint space at L5-S1." The veteran was discharged to limited duty on January 4, 1983. The diagnosis was low back pain. The veteran was fitted for a lumbosacral corset on January 21, 1983. When seen for low back pain in August 1983 an examination revealed pain to palpation of the lower lumbar spine. X-ray studies were reported as disclosing a small extradural defect of the "L5-S1 region" which was not considered to be of immediate clinical significance. The examiner's assessment was "[m]echanical LBP (low back pain)." During a March 1991 VA orthopedic examination the veteran reported that he wore a lumbosacral back support when his back pain recurred, but not on a regular basis. He demonstrated forward back flexion which brought his fingertips to within four inches of the floor. Backward extension was normal and lateral rotation was normal bilaterally. The diagnosis was recurrent low back sprain. X-ray studies were reported as showing a "[n]ormal lumbosacral spine." An April 1991 rating decision established service connection for recurrent low back sprain and assigned a noncompensable disability rating, effective from May 24, 1990, the date of receipt of the veteran's claim. The noncompensable rating was assigned under Diagnostic Code 5295 of the VA rating schedule, which provides a noncompensable rating for lumbosacral strain with slight subjective symptoms only. A 10 percent rating is warranted for lumbosacral strain with characteristic pain on motion. 38 C.F.R. § 4.71a, Code 5295. From the recent medical evidence it is obvious that the veteran's service-connected recurrent low back sprain is not productive of more than the noted subjective symptomatology. There was no objective evidence of pain during the March 1991 range of back motion studies or other evidence indicative of the criteria required for the next higher rating of 10 percent under Diagnostic Code 5295. As above, the VA is obligated to consider a claim for increase under any additional codes under which entitlement to an increase might potentially be established. See Schafrath, 1 Vet.App. at 593. In this case, such consideration includes Diagnostic Code 5289 which provides disability ratings for ankylosis of the lumbar spine, and Diagnostic Code 5292 which provides a disability rating of 20 percent for moderate limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Codes 5289 and 5292. Since the veteran has retained mobility of the lumbar spine, a disability rating for ankylosis is not warranted. Furthermore, since the most recent medical evidence confirms that the veteran has normal backward extension and lateral rotation, and forward flexion which brought his fingertips to within four inches of the floor, it is apparent that a disability rating for moderate limitation of lumbar motion is not applicable. Therefore, upon review of all the evidence concerning the veteran's recurrent low back sprain, the Board finds that the preponderance of the evidence fails to substantiate that the impairment warrants a compensable disability rating. In reaching its decision, the Board has considered the complete history of the disablities in question as well as the current clinical manifestations and the effect the disabilities may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.16 (1994). The nature of the original injuries has been reviewed and the functional impairment which can be attributed to pain or weakness has been taken into account. 38 C.F.R. § 4.40 (1994). Further, the Board finds that in this case the disability picture is not so exceptional or unusual so as to warrant an evaluation on an extraschedular basis. It has not been shown that the service- connected low back or right knee disability has caused marked interference with employment or necessitated frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1)(1994). The criteria for an evaluation greater than those currently assigned have not been met or approximated. 38 C.F.R. § 4.7 (1994). Finally, since the negative evidence outweighs that which is positive on the merits of the issues denied, the veteran cannot be given the benefit of the doubt since no such doubt arises. ORDER Service connection for ureterolithiasis and allergic rhinitis is granted. Service connection for an acquired psychiatric disorder and asthma, and increased ratings for the residuals of a right knee injury and recurrent low back sprain, are denied. WAYNE M. BRAEUER 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.