BVA9502446 DOCKET NO. 93-06 923 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to service connection for a chronic back disorder. 2. Entitlement to service connection for a chronic disorder of the knees. 3. Entitlement to service connection for a chronic disorder of the ankles. 4. Entitlement to an increased (compensable) evaluation for bilateral hearing loss. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from June 1969 to July 1978. This appeal arose from a July 1992 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The RO denied entitlement to service connection for disabilities of the back, knees, and ankles; and granted entitlement to service connection for bilateral hearing loss with assignment of a noncompensable evaluation. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that during service he sustained injuries to his back, knees, and ankles, thereby resulting in chronic disabilities upon which to predicate entitlement to service connection. He argues that his bilateral defective hearing is more disabling than currently evaluated, 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 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 claims for service connection for disabilities of the back, knees, and ankles are not well grounded; and that the preponderance of the evidence is against a grant of an increased (compensable) evaluation for bilateral hearing loss. FINDINGS OF FACT 1. The claims for service connection for disabilities of the back, knees, and ankles are not supported by cognizable evidence showing that the claims are plausible or capable of substantiation. 2. A June 1992 VA audiology examination disclosed that right pure tone thresholds were 5, 10, 35, and 80 decibels with an average of 33 decibels at 1000, 2000, 3000, and 4000 hertz, with a speech discrimination ability of 96 percent. 3. A June 1992 VA audiology examination disclosed that left pure tone thresholds were 10, 50, 75, and 90 decibels with an average of 56 decibels at 1000, 2000, 3000, and 4000 hertz, with a speech discrimination of 88 percent. CONCLUSIONS OF LAW 1. The claim for service connection for a chronic back disorder is not well grounded. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 5107); 38 C.F.R. 3.303(b)(c), 3.307, 3.309 (1994). 2. The claim for service connection for a chronic disorder of the knees is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. 3.303(b). 3. The claim for service connection for a chronic disorder of the ankles is not well grounded. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303(b). 4. The schedular criteria for an increased (compensable) evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.85, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for a chronic back disorder. Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that his claim is well grounded; that is, that the claim is 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 this burden, the Board finds that his claim for service connection for a chronic back disorder is not well grounded. Service connection may be granted for disease or injury of the back shown to have originated coincident with service. Service connection may not be granted a disorder of the back not recognized as a disability under the law. Service connection may not be granted for a back disability or disabilities reported many years after service which are not shown to be related to acute and transitory symptomatology reported in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.303(b)(c), 3.307, 3.309. Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is 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 recognized as a competent medical authority. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, his lay assertions cannot constitute cognizable evidence, Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the absence of cognizable evidence renders a veteran's claim not well grounded. The service medical records show that the examination for enlistment conducted in April 1969 was negative for any abnormalities of the back. In January 1971 the veteran was treated for a constellation of symptoms which included backache and was found to have acute tonsillitis. In July 1973 he fell from a horse and sustained abrasions to his back. An x-ray was reported as negative for any abnormalities. A few days later he was noted to have right paravertebral muscle spasm. In December 1974 he was treated for right low back and hip pain of two weeks duration with no history of injury. On examination there was local tenderness over the lower sacrococcygeal area. The clinical assessment was sacroiliac pain. In February 1976 the appellant was seen with complaints of back pain and having fallen the previous week while carrying a machine gun and being struck in the mid back. An examination resulted in a diagnostic impression of back injury. Additional examination resulted in a finding of bilateral paraspinous muscle spasm at L1-L4 with tenderness. He was placed on a physical profile for back pain in April 1976, to be canceled in June 1976. The veteran was treated for back pain and tender and painful legs especially at night in October 1976. He experienced occasional sleep disturbances related to pain. In the morning he had pain at the right instep radiating up the leg for approximately one minute and subsequent aching pain. The report of general medical examination for separation from active service conducted in July 1978 shows a normal evaluation of the spine. The veteran denied a history of recurrent back pain. A June 1992 VA examination report shows the examiner provided diagnoses of congenital spina bifida occulta as seen on x-ray with degenerative arthritis, and normal clinical examination. The veteran testified as to his back difficulties at an RO hearing held in October 1992. He stated that his back disabilities were directly related to injury sustained in service. He testified that he was carrying two .50 caliber machine guns when he fell after slipping on icy steps. He was struck in his back and treated on a symptomatic basis for pain. He was unable to recall any additional injuries in service. The veteran was recently diagnosed on VA examination with spina bifida occulta noted by the VA examiner to be congenital in nature. In other words, this disorder is not recognized as a disability under the law for VA compensation purposes. 38 C.F.R. § 3.303(c). The veteran was also diagnosed with degenerative arthritis. Degenerative arthritis has not been linked to injury in service. More specifically, the claims file is devoid of an opinion from a VA or non-VA health care professional relating post-service reported arthritis to any incident of service. The veteran has produced no post service evidence of continuity of back symptomatology since service to link any present back disorder to symptomatology reported in service. In the absence of competent evidence linking a chronic disorder to service, the veteran has failed to present a well grounded claim, and his appeal as to service connection for a chronic back disorder must be dismissed. II. Entitlement to service connection for a chronic bilateral knee disorder. A similar situation exists with respect to the veteran's claim for service connection for a chronic bilateral knee disorder. There is no competent medical evidence of record to show that the veteran has a chronic disorder of either knee related to his service. Murphy. His lay opinion alleging the presence of chronic knee disabilities does not constitute cognizable evidence. Espiritu. The service medical records show that no abnormality of either knee was found when the veteran was examined for enlistment in April 1969. In April 1976 he reported that he had turned his right knee. An examination disclosed range of motion to 170 degrees. The was marked medial collateral ligamentous tenderness with ligamentous strain of the medial collateral ligament. X- rays were within normal limits. Chondromalacia of the right knee was diagnosed in October 1976 due to ongoing symptomatology. The appellant was placed on a 30 day physical profile. In July 1977 he was treated for complaints of right knee pain. A physical examination was reported as normal. He was seen in April 1978 for bilateral knee pain and diagnosed with bilateral chondromalacia and bilateral knee pain. The July 1978 report of medical examination for separation from active service was negative for any knee abnormalities, and the veteran denied a history of knee symptomatology. In a June 1992 letter, Douglas G. Swanson, M.D., the veteran's attending physician, advised that he had been the veteran's primary care provider since 1987. Dr. Swanson noted that the veteran had reported a history of bilateral subpatellar chondromalacia since 1976. Although the veteran might have some cartilage damage, Dr. Swanson was unable to demonstrate this on examination. After his examination of the appellant in June 1992, the VA examiner advised that the knees were normal on examination and on x-ray, and there was insufficient clinical evidence to warrant a diagnosis of any acute or chronic disorder or residuals thereof. The Board finds that the evidentiary record does not substantiate the veteran's claim that he has chronic disorders of both knees originating coincident with active service. His hearing testimony in this regard has been carefully evaluated and is similarly not shown to be corroborated by the evidence of record. No chronic disorder of either knee related to service or symptomatology reported therein is shown to exist. The veteran's claim is not supported by cognizable evidence and must therefore be dismissed. III. Entitlement to service connection for chronic bilateral ankle disorders. As was the case of service connection for chronic back and knee disorders, the Board must again dismiss the veteran's claim for service connection for chronic bilateral ankle disorders. In this regard, the Board observes that during service in October 1976, the veteran reported for treatment of a sprained ankle with a bruise on his leg. There are no further references to ankle symptomatology in service. The June 1992 VA examination report shows the examiner reported a normal ankle evaluation both clinically and on x-ray and noted there was insufficient evidence to warrant a diagnosis of any acute or chronic ankle disorder or residuals thereof. The veteran is not shown to have a chronic disorder of either ankle related to service. The veteran's claim, lacking cognizable medical evidence, must be dismissed. The Board recognizes that the appellant's foregoing 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 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 would point out that by the action of dismissing his claims, the veteran is not burdened 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). IV. Entitlement to an increased (compensable) evaluation for bilateral hearing loss. The Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that it is at least plausible that his bilateral hearing loss 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 bilateral hearing loss. The Board has found nothing in the record which would lead to a conclusion that the current evidence of record is inadequate for rating purposes. The service medical records show that the veteran was diagnosed with bilateral high frequency hearing loss on numerous occasions. An audiology examination of the veteran was conducted by VA in June 1992. Right pure tone thresholds were 5, 10, 35, and 80 decibels with an average of 33 decibels at 1000, 2000, 3000, and 4000 hertz with a speech discrimination ability of 96 percent. Left pure tone thresholds were 10, 50, 75, and 90 decibels with an average of 56 decibels at 1000, 2000, 3000, and 4000 hertz with a speech discrimination ability of 88 percent. At the October 1992 RO hearing, the veteran testified that he experienced difficulty hearing with background noises. It was his belief that his defective hearing in the left ear was worse than in the right ear. He reported that hearing aids had been recommended. The Board readily acknowledges the veteran's difficulties in his efforts to hear properly due to his service-connected defective hearing. Nonetheless, the extent of his hearing loss as shown on the June 1992 VA audiology examination is not so severe as to warrant a grant of an increased (compensable) evaluation with application of pertinent governing criteria. Right defective hearing manifested by an average loss of 33 decibels with a speech discrimination ability of 96 percent equates to a numeric designation of I on Table VI of 38 C.F.R. § 4.85 of the VA Schedule for Rating Disabilities. Left defective hearing manifested by an average loss of 56 decibels with a speech discrimination ability of 88 percent equates to a numeric designation of II on Table VI. These numeric designations result in assignment of a noncompensable evaluation under diagnostic code 6100 of Table VII. Higher average decibels losses and lower speech discrimination ability would be necessary in order to warrant a grant of an increased (compensable) evaluation. There exist no question as to which of two or more evaluations would more properly classify the severity of the appellant's bilateral defective hearing. 38 C.F.R. § 4.7. Bilateral defective hearing has not rendered the veteran's disability picture unusual or exceptional in nature and has not markedly interfered with his 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 (compensable) evaluation on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). The Board finds that bilateral defective hearing is properly evaluated as noncompensable. An increased (compensable) evaluation is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. § 3.321(b)(1), 4.7, 4.85, Diagnostic Code 6100. ORDER The claim for service connection for a chronic back disorder is dismissed. The claim for service connection for a chronic disorder of the knees is dismissed. The claim for service connection for a chronic disorder of the ankles is dismissed. Entitlement to an increased (compensable) evaluation for bilateral hearing loss 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.