BVA9503251 DOCKET NO. 93-05 444 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for residuals of kidney stones. 3. Entitlement to service connection for a bilateral knee disability. 4. Entitlement to an increase (compensable) evaluation for a service connected right knee scar. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John J. Crowley, Associate Counsel INTRODUCTION The veteran served on active duty from July 1942 to December 1945. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his bilateral knee disability is the result of an injury in service. It is also contended that the veteran has sustained a ringing noise in his ear since World War II. Further, it is contended that the veteran's complaints of pain in his right renal area and right lower abdomen during service were the initial signs of a kidney stone condition. 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, that it is the decision of the Board that the veteran has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims for service connection for tinnitus, residuals of kidney stones, and a bilateral knee disability are well grounded; therefore, the claims are dismissed. Further, it is the decision of the Board that the weight of the evidence is against the veteran's claim for entitlement to an increased evaluation for a service connected right knee scar. FINDINGS OF FACT 1. Tinnitus, a bilateral knee disorder or chronic residuals of a kidney disorder were not present in service. 2. No competent medical evidence is of record that would establish that the veteran currently has tinnitus that is causally related to service or to any incident or event therein. 2. No competent medical evidence is of record that would establish that the veteran currently has residuals of kidney stones, or that if such a disorder were present, that it is causally related to service or to any incident or event therein. 3. No competent medical evidence is of record that would establish that the veteran currently has a bilateral knee disorder, apart from the service connected scar of the right knee, that are causally related to service or to any incident or event therein. 4. The residuals of the veteran's service-connected right knee scar is manifested by a slight, well-healed scar on the right knee, flat and nontender. 5. No unusual or exceptional disability factors have been presented. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for tinnitus is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The claim of entitlement to service connection for residuals of kidney stones is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. The claim of entitlement to service connection for a bilateral knee disability is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 4. The criteria for a compensable rating for a scar of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b), 4.2, 4.3, 4.7, 4.10, 4.40, Part 4, Diagnostic Codes 7803 and 7804 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The threshold question is whether the veteran has presented evidence of well-grounded claims. A well grounded claim is one which is plausible, that is meritorious on its own or capable of substantiation. If he has not submitted a well grounded claim, his appeal must fail. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet.App. 78 (1990). Further, if he has not submitted evidence of a well-grounded claim, there is no duty to assist him in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). For purposes of determining whether a claim is well-grounded, all of the evidence of record is examined, not just that which has been specifically submitted to support a particular claim. See, e.g., Sibley v. Derwinski, 3 Vet.App. 188 (1992); Proscelle v. Derwinski, 2 Vet.App. 629 (1992); Godwin v. Derwinski, 1 Vet.App. 419 (1991). Service medical records reveal treatment in December 1942 for complaints of pain in the veteran's back and abdomen. Examination was essentially negative with the exception of pain in the right renal area. Rectal examination was negative. Urinalysis testing revealed a very faint trace of blood in his urine. Later that month, his pain subsided and he was returned to duty. He was described as "well." In January 1943, the veteran was treated when he injured his knee "slightly" the night before. On examination, no evidence of injury was found except for a slight abrasion over the right patella. No crepitation or evidence of a fracture was found. Later that day, the veteran was hospitalized with a diagnosis of acute bursitis of the right knee with a history of pain and swelling. Physical examination revealed a moderately swollen right knee with moderate limitation of motion due to pain. X-ray studies in February 1943 were negative for a fracture or any bone pathology. However, X-ray studies later that month revealed swelling of the soft tissues about the right knee joint with osseous structures normal in appearance. The right knee improved with heat therapy. The veteran was returned to duty. In his December 1945 separation examination, the veteran made no complaints concerning any disability or injury in service. On examination, no defects were found. The veteran was discharged that month. In May 1984, the veteran filed an application for compensation with VA. Significantly, the veteran made no reference to kidney stones, a bilateral knee disability, or difficulties with his right knee scar. The veteran did refer to a tinnitus condition. In a May 1984 VA audiology examination, the veteran complained of a constant ringing bilaterally. An extensive history of noise exposure was noted involving heavy artillery during World War II and during his 37 years as a railroader. In an August 1984 rating decision, the RO denied the veteran's claim for service connection for hearing loss. The veteran was not specifically denied service connection for tinnitus. Accordingly, this issue is before the Board on a de novo basis. In February 1991, the veteran filed his current claim for compensation benefits. In a May 1991 VA examination, the veteran reported that while in the Navy he fell down a ladder as he was descending through a hatch, injuring both knees. He indicated that he was hospitalized for three months as a result of this injury. He stated that since this time if he gets overly tired and is on his feet too much during the day, after he goes to bed, his right calf starts to ache from the knee down. On examination of his right knee over the patella, the examiner found a "vague scar that blends in very nicely with the surrounding skin and it's difficult to see, even in bright sunlight." The scar was quite irregular in shape, "may" extend as long as 8 centimeters, but was difficult to measure because it blended well with the veteran's skin. Both knees flexed to 140 degrees and extended fully. The ligaments were intact, without evidence of effusion. X-ray studies revealed degenerative changes in both knees. The final diagnosis was mild degenerative joint disease of both knees with a right knee scar. In a May 1991 rating determination, the RO granted service connection for a right knee scar and awarded a noncompensable evaluation. The veteran continued his appeal. Outpatient treatment records from July 1991 note treatment for "minimal" degenerative joint disease of the knees. In February 1992, the veteran underwent an arthroscopy of the left knee with a partial left medial meniscectomy for a degenerative left medial meniscal tear. Unlike civil actions, the VA benefit systems require more than just an allegation. A claimant must submit supporting evidence. Furthermore, the evidence must be sufficient to justify a belief by a fair and impartial individual that the claim is plausible. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). The evidence submitted by the veteran in support of his claims of entitlement to service connection for tinnitus, residuals of a kidney stone condition, and a bilateral knee disability consist of his own statements, medical records of treatment for a knee disability which begin more than 45 years after the veteran's active service, and a VA audiology examination which notes complaints of tinnitus in 1984. No examiner has supported his allegations that his present disabilities have any relationship to his active service. The United States Court of Veterans Appeals (Court) has held that a lay party is not competent to provide probative evidence as to matters requiring expertise derived from specialized medical education. Espiritu v. Derwinski, 2 Vet.App. 492, 494, 495 (1992). Moreover, the Court has held that, where determinative issues involve medical causation or diagnosis, there must be competent medical evidence supporting a claim to make it "plausible" and, thus, well grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). The veteran's lay assertions to the effect that a causal link exists between: (1) treatment in service for a knee injury; (2) his exposure to loud noise in service more than 50 years ago; and (3) his complaints of pain in his right renal area and the right lower abdomen more than 50 years ago, and: (a) his subsequent development of degenerative joint disease in his knees more than 45 years after service; (b) tinnitus; and (c) an alleged kidney stone condition, are neither competent nor probative of the issue in question. Significantly, the veteran has failed to produce evidence of kidney stone disorder. Moreover, in this 1984 audiology examination, the veteran indicated that his tinnitus condition was the result of exposure to artillery noise in service, which occurred 40 years ago, and his employment on the railroad for 37 years. Further, the veteran failed to declare that he suffered from a bilateral knee disorder or kidney stones when he initially filed for compensation benefits in 1984. In Moray v. Brown, 5 Vet.App. 211 (1993), the Court noted that lay persons are not competent to offer medical opinions and, therefore, those opinions do not even serve as a basis for a well-grounded claim. In this case, there is no competent medical evidence of record to support the contention that there is a relationship between the veteran's active service and his current disabilities. As noted earlier, under the controlling law and decisions of the Court, the initial burden is on the shoulders of the veteran to demonstrate that his claim is well grounded. See Murphy at 81. The Board notes that the veteran has not presented any evidence to support his contention that he suffers from residuals of kidney stones. In Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992), the Court, finding no evidence of a current disability, held that the claim was not plausible, and therefore not well- grounded. Further, if service medical records do not show the claim disability, and there is no medical evidence to link a current disability with the events in service or with a service- connected disability, the claim is not well grounded. Montgomery v. Brown, 4 Vet.App. 343 (1993) (memorandum decision cited for persuasive reasoning per Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992)). In light of the discussion above, the application of law to the fact of this case mandates the conclusion that the appellant's claims for tinnitus, residuals of kidney stones, and a bilateral knee disability are not well grounded. When the Board addresses in a decision a question that has not been addressed by the RO as, in this case, the question of whether the veteran's claim is well grounded, it must be considered whether the claimant has been given adequate notice to respond and, if not, whether the claimant has been prejudiced thereby. Bernard v. Brown, 4 Vet.App. 383 (1993). However, in light of the implausibility of the veteran's claims and his failure to meet the initial burden in the adjudication process, the Board concludes that he has not been prejudiced by the decision herein. In this regard, the Board would point out to the veteran that by this decision dismissing his claims as not well grounded, he is not burdened with a prior final adjudication on the merits. Thus, if he is able to submit a well-grounded claim in the future, he will not be faced with a higher hurdle of providing new and material evidence to reopen his claim after a prior final adjudication. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991); McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). The veteran is competent to testify as to the symptoms he associates to his service connected right knee scar. Accordingly, the Board finds that the veteran's claim for this disability to be well grounded. King v. Brown, 5 Vet.App. 19 (1993). The Board is also satisfied that the VA has met its duty to assist the veteran in the development of all facts pertinent to this claim, as prescribed by 38 U.S.C.A. § 5107(a). However, while the veteran can certainly provide an eyewitness account of his symptoms, he is not competent to offer evidence that requires medical knowledge, such as a diagnosis as to the cause of his own knee disability, tinnitus condition, kidney stones, or the medical cause of certain symptoms. Espiritu at 494. Disability evaluations are determined by the application of a schedule of ratings which is based on average industrial impairment. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Superficial scars, poorly nourished, with repeated ulceration, or scars that are superficial, tender and painful on objective demonstration warrant a 10 percent evaluation. 38 C.F.R. Part 4, Diagnostic Codes 7803 and 7804. In evaluating a service-connected disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the elements of the disability. 38 C.F.R. § 4.2. The record contains no current competent medical evidence of an impairment due to the veteran's right knee scar. The VA examination of May 1991, the examiner indicated that the scar is barely visible and does not affect the veteran's ability to function. There is no competent evidence that his right knee scar has either caused his right knee disability or limits his ability to function. In light of the foregoing, the Board finds that the preponderance of the evidence is against the veteran's claim for an increased evaluation for a right knee scar and, consequently, the doctrine of reasonable doubt does not apply. The Board has considered the provisions of 38 C.F.R. § 3.321(b)(1); however, the evidence fails to show that the disability at issue is so exceptional or unusual as to warrant the assignment of an extraschedular evaluation. The Board has also considered all other potential applicable provisions of 38 C.F.R. Parts 3 and 4 (1993), whether or not they have been raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). However, there is no section that provides a basis upon which to assign a higher disability evaluation for the reasons discussed herein. ORDER The claim of entitlement to service connection for tinnitus is dismissed. The claim of entitlement to service connection for residuals of kidney stones is dismissed. The claim of entitlement to service connection for a bilateral knee disability is dismissed. Entitlement to an increase evaluation for a right knee scar is denied. RICHARD B. FRANK 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.