BVA9507938 DOCKET NO. 93-15 016 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the low back as secondary to service-connected residuals of a fracture of the right tibia with scar and degenerative changes of the ankle. 2. Entitlement to service connection for osteoarthritis of the right hip as secondary to service-connected residuals of a fracture of the right tibia with scar and degenerative changes of the ankle. 3. Entitlement to an increased (compensable) evaluation for residuals of a fracture of the right tibia with scar and degenerative changes of the ankle. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from November 1943 to March 1946. This appeal arose from an August 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The RO denied entitlement to an increased (compensable) evaluation for residuals of a fracture of the right tibia with scar and degenerative changes of the ankle. In a June 1992 rating decision, the RO denied entitlement to service connection for degenerative disc disease of the low back and osteoarthritis of the right hip as secondary to service- connected residuals of a fracture of the right tibia with scar and degenerative changes of the ankle. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he developed chronic low back and right hip disorders as the result of his service connected disability of the right ankle. He argues that he has submitted opinions from VA as well as non-VA physician's relating the chronic low back and right hip disorders to his service-connected disability of the right ankle. The veteran avers that his right ankle disability is productive of considerable pain and impairment, thereby warranting a grant of an increased (compensable) evaluation. 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 files. 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 degenerative disc disease of the low back and osteoarthritis of the right hip as secondary to service-connected residuals of a fracture of the right tibia with scar and degenerative changes of the ankle, and that the record supports a grant of an increased (compensable) evaluation for residuals of a fracture of the right tibia with scar and degenerative changes of the right ankle. FINDINGS OF FACT 1. The claim for service connection for degenerative disc disease of the low back as secondary to service-connected residuals of a fracture of the right tibia with scar and degenerative changes of the ankle is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. The claim for service connection for osteoarthritis of the right hip as secondary to service-connected residuals of a fracture of the right tibia with scar and degenerative changes of the ankle is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 3. Residuals of a fracture of the right tibia with scar and degenerative changes of the ankle are productive of functionally disabling pain. CONCLUSIONS OF LAW 1. The claim for service connection for degenerative disc disease of the low back as secondary to service-connected residuals of a fracture of the right tibia with scar and degenerative changes of the ankle is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. The claim for service connection for osteoarthritis of the right hip as secondary to service-connected residuals of a fracture of the right tibia with scar and degenerative changes of the ankle is not well grounded. 38 U.S.C.A. § 5107. 3. The criteria for an increased (compensable) evaluation of 10 percent for residuals of a fracture of the right tibia with scar and degenerative changes of the ankle have been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.71(a), 4.97, Diagnostic Codes 5010-7805 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for degenerative disc disease of the low back and osteoarthritis of the right hip as secondary to service-connected residuals of a fracture of the right tibia with scar and degenerative changes of the ankle. 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. Brown, 5 Vet.App. 91, 92 (1993). Because the veteran has failed to meet his burden, the Board finds that his claims for service connection for degenerative disc disease of the low back and degenerative arthritis of the right hip as secondary to service- connected residuals of a fracture of the right tibia with scar and degenerative changes of the ankle are not well grounded and should be dismissed. Service connection may be granted for any disorder which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (1994). Where the determinative issues involve 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, the veteran's 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. It is the contention of the veteran that he developed chronic disorders of his low back and right hip as the result of alteration of gait due to his service-connected right ankle disability. He further argues that physicians have substantiated his contention. The service medical records show that in February 1945 the veteran reported for treatment of a sprain of the right ankle joint. It was noted that while playing basketball he turned the ankle causing an injury. The right ankle was swollen and tender. A radiographic study was negative for a fracture. There was limited motion of the right ankle. An August 1947 VA examination report shows there was a 1 inch, healed, pigmented scar above the right internal malleolus. There was no edema or ankylosis involving the right ankle joint. The veteran walked with a slight limp of the right foot. There was a full range of motion of the foot as noted by the examiner. An x- ray of the right ankle disclosed no evidence of an old fracture. The talus showed a good alignment in the ankle joint. The medial side of the tibia 2 inches above the ankle joint showed a cortical roughening and irregularity which was consistent with old trauma. The examination diagnosis was questionable old fracture of the right tibia, healed. At a July 1977 VA examination the veteran reported that over the years he had had some difficulty. He stated that his leg would tend to give way beneath him, but this had become more obvious over the years. He stated that he got pain in the right leg which apparently began in the region of the injury and then traveled up the leg into the back. He got backaches. X-rays of the right ankle disclosed localized periosteal new bone formation at the medial aspect of the distal tibia. The ankle mortise was not widened. The examination diagnoses were degenerative disc disease at L5-S1 and residuals of trauma to the leg as described. The Board's review of the evidence of record, including the testimony proffered by the veteran at the RO hearing, discloses that not only has no VA or non-VA medical health professional substantiated the veteran's argument, in the case of his low back disorder a contrary opinion has been expressed. The record shows that the veteran initially complained of low back symptomatology when examined by VA in July 1977. He was diagnosed with degenerative disc disease at L5-S1. On examination the range of motion of the back was full. No alteration of gait was demonstrated on examination. The VA examiner specifically expressed the opinion that the veteran's low back pain was not related to his original right ankle fracture. 1991 X-rays of the low back disclosed osteoarthritic changes from L3 to L5-S1 in addition to degenerative disc disease. When seen by VA on an outpatient basis in October 1991 the veteran related low back symptomatology to 1949. The examiner noted severe hypertrophic changes in the lumbar spine and there was no opinion as to its etiology. Nowhere in the record is there an opinion from a VA or non-VA medical professional noting a cause and effect relationship between the veteran's service-connected disability of his right ankle and his variously diagnosed disorders of the low back. With respect to the right hip, correspondence on file from a private physician dated in August 1977 shows the veteran was seen in 1971 with complaints of sudden onset of acute pain and tenderness in the right hip, anterior thigh radiating into the medial foreleg. No opinion was expressed as to the etiology of the right hip pain. An undated medical statement from the same physician noted that as far as relating his degenerative right hip to the service-connected right ankle disability, he believed it was possible that the ankle injury sustained while in the service in 1944 may have contributed to the development and progression of the degenerative right hip disease. VA outpatient treatment reports on file dated in 1991 and 1992 show that alteration of gait might be a causative factor or could be a contributing factor to degenerative disease of the right hip. In early 1992 a VA physician noted the relationship of an old injury to developing osteoarthritic degeneration in the hip joint on the same side was not constantly found to occur. Therefore, although it was possible that an alteration of gait due to knee/ankle symptomatology might be a causative factor, it was not found in the majority of cases. It could be a contributory cause, but it could not be stated that it was definitely or constantly the causation. In a January 1992 letter, Michael A. Mazza, M.D., advised that he had been treating the veteran since 1966. He was seen on two occasions for right hip and leg pain. The first visit was in May 1971 when he was seen for "soreness" of the right hip and the anterior right thigh of one day's duration. Examination disclosed no neurological abnormality. The second visit was in July 1974 at which time the veteran gave a four week history of lower back pain. Dr. Mazza'a impression was that the veteran had a low back strain. The Board observes that an opinion there may be or might be or it is possible there is a relationship between the service-connected disability of the right ankle and the development of chronic disorders of the low and right hip is fundamentally different from an opinion which states there is a relationship. The United State Court of Veterans Appeals has held that where a physician is unable to provide a definite causal connection, the opinion on that issue constitutes "what may be characterized as 'non-evidence'". See Perman v. Brown, 5 Vet.App. 237, 241 (1993); (citing Sklar v. Brown, 5 Vet.App. 140, 145-46 (1993); Kates v. Brown, 5 Vet.App. 93, 95 (1993); Tirpak v. Brown, 2 Vet.App. 609, 610-11 (1992); see also Dyess v. Derwinski, 1 Vet.App. 448, 453- 54 (1991). The Board has also noted that no VA or non-VA medical health professional has noted that the veteran's service-connected right ankle disability has aggravated or caused to worsen his nonservice-connected degenerative disc disease of the low back and osteoarthritis of the right hip. Allen v. Brown, U.S. Vet. App. 93-245 (Mar 17, 1995) Accordingly, the Board finds that the opinions by the VA and non- VA physicians discussed above constitute "non-evidence," and that they do not provide a basis for granting service connection. In the final analysis the Board finds there is no competent medical evidence of record relating the post service reported degenerative disc disease of the low back and osteoarthritis of the right hip to the service-connected disability of the right ankle. The medical history of the veteran's right ankle disability since service does not demonstrate any chronic, significant alteration of gait due to the service-connected right ankle disability. The veteran's claims in this regard are not well grounded and must be dismissed. The Board recognizes that the veteran's claims have been disposed 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 the appellant's 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 (West 1991); Mc Ginnis 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. Entitlement to an increased (compensable) evaluation for residuals of a fracture of the right tibia with scar and degenerative changes of the ankle. The Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), in that it is at least plausible that the veteran's right ankle disability has 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 the veteran's right ankle disability. 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. As noted above, the service medical records show that in February 1945 the veteran reported for treatment of a sprain of the right ankle joint. It was noted that while playing basketball he turned the ankle causing an injury. The right ankle was swollen and tender. A radiographic study was negative for a fracture. There was limited motion of the right ankle. An August 1947 VA examination, discussed above, concluded in a finding of a questionable old fracture of the right ankle. The RO granted entitlement to service connection for a scar with a healed fracture of the right tibia which was assigned a noncompensable evaluation when it issued a rating decision in August 1947. A June 1991 VA x-ray disclosed cortical thickening identified along the supracondylar aspect of the medial surface of the distal right tibia. It was noted that this was probably due to old trauma. The calcaneus showed a small spur formation. At a July 1991 VA examination the veteran related that he had noticed frequent episodes of pain and swelling about the distal right tibia until approximately 1948 when he went to a private physician and x-rays apparently revealed an old, well healed fracture. He continued to notice frequent episodes of pain and swelling about the area. A physical examination of the right lower extremity was essentially negative as noted by the examiner. There was a small oval-shaped scar measuring approximately 1 1/2 by 1 1/2 centimeters just approximately 1 inch superior to the medial malleolus on the right which apparently was the site of the protrusion of the bony fragments on his original fracture. There was no evidence of swelling and tenderness. There was a full range of motion of the knee and ankle as noted by the examiner. The examiner felt that the veteran would have frequent episodes of pain and swelling about the distal right tibia. The diagnosis was an old, well healed fracture of the right tibia. The veteran provided testimony at a September 1992 RO hearing. He discussed the disabling manifestations of his right ankle disability. The veteran's right ankle disability is evaluated as noncompensable under diagnostic code 5010, due to the presence of arthritis from previous trauma, and diagnostic code 7805, on the basis of limitation of function of the anatomical part affected. The noncompensable evaluation has been assigned on the basis of no residual disability of the right ankle being shown. 38 C.F.R. § 4.31 (1994). The Board observes that the veteran has complained of disabling pain in his right ankle. The VA examiner also took cognizance of the veteran's symptomatology and noted that he would have frequent episodes of pain and swelling about the distal right tibia. The Board finds that the veteran suffers from functionally disabling pain thereby warranting a grant of an increased (compensable) evaluation of 10 percent under the criteria of 38 C.F.R. § 4.40 (1994). No question has been presented as to which of two evaluations would more properly classify the severity of the appellant's right ankle disability. 38 C.F.R. § 4.7 (1994). The claimant's right ankle disability has not rendered his 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, thereby precluding a grant of an increased evaluation on an extraschedular basis. 38 C.F.R. § 3.321(b)(1) (1994). It is the judgment of the Board that the record supports a grant of an increased (compensable) evaluation of 10 percent for residuals of a fracture of the right tibia with scar and degenerative changes of the ankle. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.71(a), 4.118, Diagnostic Codes 5010-7805 (1994). ORDER The claim for service connection for degenerative disc disease of the low back as secondary to service-connected residuals of a fracture of the right tibia with scar and degenerative changes of the ankle is dismissed. The claims for service connection for osteoarthritis of the right hip as secondary to service-connected residuals of a fracture of the right tibia with scar and degenerative changes of the ankle is dismissed. Entitlement to an increased (compensable) evaluation of 10 percent for residuals of a fracture of the right tibia with scar and degenerative changes of the right ankle is granted, subject to pertinent criteria applicable to the payment of monetary benefits. 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.