BVA9505305 DOCKET NO. 93-04 467 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a chronic right knee disorder. 2. Entitlement to service connection for a chronic left knee disorder. 3. Entitlement to service connection for a chronic right shoulder disorder. 4. Entitlement to service connection for a chronic left shoulder disorder. 5. Entitlement to service connection for a chronic right ankle disorder. 6. Entitlement to an increased disability evaluation for residuals of a dorsal (thoracic) spine injury, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Hutcheson, Associate Counsel INTRODUCTION The veteran had active military service from December 1986 to March 1990. This matter came before the Board of Veterans' Appeals (hereinafter "the Board") on appeal from a December 1990 rating decision of the Waco, Texas Regional Office (hereinafter "the RO") which granted service connection for residuals of a dorsal (thoracic) spine injury with some limitation of motion evaluated as 10 percent disabling and denied service connection for a chronic right knee disorder. In June 1992, the RO denied service connection for a chronic left knee disorder, a chronic right shoulder disorder and a chronic left shoulder disorder and an increased disability evaluation for the veteran's service-connected dorsal spine disorder. The RO's December 1990 rating decision stated that a determination as to the veteran's entitlement to service connection for fracture residuals of the left hand was being withheld as the veteran failed to provide requested information needed to make a finding as to whether the claimed disorder was incurred in the line of duty. In November 1992, the RO denied service connection for a chronic right ankle disorder. In November 1994, the Board notified the veteran's accredited representative of its proposed reliance upon a certain medical text in compliance with the holding of the United States Court of Veterans Appeals (hereinafter "the Court") in Thurber v. Brown, 5 Vet.App. 119 (1993). In December 1994, the accredited representative submitted an informal hearing presentation indicating that the veteran had no further evidence, argument or comment. The veteran has been represented throughout this appeal by the Disabled American Veterans. The Board observes that the veteran has repeatedly advanced his claim of entitlement to service connection for fracture residuals of the left hand throughout the pendency of the instant appeal. In the absence of any determination by the RO as to the veteran's entitlement to service connection for the claimed disability, the Board is without jurisdiction to consider the issue. 38 U.S.C.A. § 7104(a) (West 1991); 38 C.F.R. § 20.101(a) (1993). Therefore, it is referred to the RO for appropriate action. The veteran has advanced contentions on appeal which the Board has construed as a request for service connection for a lumbar spine disorder. As that issue has neither been developed nor certified for review on appeal, it is referred to the RO for the appropriate action. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts on appeal that the RO erred in denying service connection for a chronic right knee disorder, a chronic left knee disorder, a chronic right shoulder disorder, a chronic left shoulder disorder and a chronic right ankle disorder and in failing to assign a disability evaluation in excess of 10 percent for his service-connected dorsal (thoracic) spine disorder. He contends that he incurred the claimed disorders as a consequence of repeated traumas during active military service including several falls and an August 1988 motor vehicle accident. He advances that his service-connected back disorder is currently productive of significant physical impairment which merits a disability evaluation in excess of 10 percent. He avers further that the August 1990 Department of Veterans Affairs (hereinafter "VA") orthopedic examination for compensation purposes failed "to adequately state the condition of his knee" and tacitly requests that this appeal be remanded to the RO to allow for further orthopedic evaluation. DECISION OF THE BOARD In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), following review and consideration of all evidence and material of record in the veteran's claims file, it is the Board's decision that the record supports the allowance of service connection for chronic residuals of a left knee injury and a preponderance of the evidence is adverse to his claim for service connection for a chronic right knee disorder, a chronic right shoulder disorder, a chronic left shoulder disorder and a chronic right ankle disorder and an increased disability evaluation for his service-connected dorsal (thoracic) spine disorder. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for an equitable disposition of the veteran's appeal. 2. A bipartite patella is a congenital or developmental defect. 3. A chronic acquired right knee disorder was not shown during active military service and the veteran's present right knee disorder was initially manifested following service separation. The veteran's right knee disorder did not originate during his period of active military service. 4. Chronic residuals of a left knee injury were manifested during active military service. 5. The veteran's inservice right shoulder complaints were acute and transitory in nature and resolved themselves without chronic residuals. 6. A chronic right shoulder disorder was not shown during active military service and the veteran's present right shoulder disorder was initially manifested following service separation. The veteran's right shoulder disorder did not originate during his period of active military service. 7. The veteran's inservice left shoulder complaints were acute and transitory in nature and resolved themselves without chronic residuals. 8. A chronic left shoulder disorder was not shown during active military service and the veteran's present left shoulder disorder was initially manifested following service separation. The veteran's left shoulder disorder did not originate during his period of active military service. 9. A chronic right ankle disorder was not shown during active military service or at any time thereafter. 10. The veteran's service-connected dorsal (thoracic) spine disorder has not been shown to be productive of more than severe limitation of motion of the dorsal (thoracic) segment of the spine. CONCLUSIONS OF LAW 1. A chronic right knee disorder was not incurred in or aggravated by peacetime service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). 2. Chronic residuals of a left knee injury were incurred in peacetime service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). 3. A chronic right shoulder disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). 4. A chronic left shoulder disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. § 3.303 (1993). 5. A chronic right ankle disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 5107 (West 1991). 6. The schedular criteria for a disability evaluation in excess of 10 percent for residuals of an injury to the dorsal (thoracic) spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b)(1) and Part 4, including § 4.3 and Diagnostic Code 5291 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, it is necessary to determine if the veteran has submitted a well-grounded claim within the meaning of 38 U.S.C.A. § 5107(a) (West 1991), and if so, whether the VA has properly assisted him in the development of his claim. A "well-grounded" claim is one which is not implausible. A review of the record indicates that the veteran's claim is plausible. In addressing the veteran's contentions that the August 1990 VA examination was inadequate because of an allegedly defective evaluation of his right knee, the Board observes that the veteran was afforded a thorough VA orthopedic examination in March 1992 which included additional evaluation of his knees. In the absence of any evidence that the March 1992 examination was deficient, the Board finds that all relevant facts have been properly developed. Accordingly, a remand in order to allow for additional development of the record is not necessary. I. Right Knee Disorder The veteran advances that his present right knee disability was precipitated by a traumatic injury to the joint during his period of active military service. Service connection may be granted for a chronic disability arising from disease or injury incurred in or aggravated by peacetime service. 38 U.S.C.A. § 1131 (West 1991). For the showing of 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." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (1993). Congenital or developmental defects as such are not diseases or injuries within the meaning of applicable legislation providing for compensation benefits. 38 C.F.R. § 3.303(c) (1993). The veteran's service medical records do not refer to either a right knee disorder or symptoms indicative of the onset of such a disorder. A July 1988 naval treatment record shows that the veteran received an orthopedic evaluation after sustaining a left knee trauma. Contemporaneous X-ray studies of the knees revealed that the veteran exhibited multipartite patellae. At the February 1990 physical examination for service separation, the veteran neither complained of nor exhibited a right knee disorder. At the August 1990 VA examination for compensation purposes, the veteran reported having sustained a right knee twisting injury during active military service when he lost his footing on deck and subsequently receiving medical treatment for his injury including aspiration of fluid from the right knee. He denied experiencing any current right knee symptoms or prior knee fractures or surgeries. The examiner observed a range of motion of the right knee from 0 to 130 degrees with mild patello-femoral crepitans. The veteran was diagnosed as suffering from mild right knee patello-femoral chondromalacia with a history of a right knee twisting injury. A December 1991 VA X-ray study of the right knee revealed findings consistent with either an old ununited fracture or growth center of the superior-lateral edge of the patella and no other abnormalities. The VA radiologist advanced an impression of an essentially normal right knee. At the March 1992 VA orthopedic examination for compensation purposes, the veteran complained of chronic right knee pain, soreness and stiffness. He reported having fallen on a ladder during a shipboard fire drill and sustaining a chronic right knee injury. He stated that naval medical personnel placed his right knee in a brace and subsequently drained some fluid from the knee. On examination, the veteran exhibited a range of motion of the right knee from 0 to 130 degrees with crepitation and tenderness upon manipulation of the knee. Contemporaneous X-ray study of the right knee showed a bipartite patella with a small superior lateral free fragment and no other abnormalities. The VA radiologist advanced an impression of an essentially normal right knee. The veteran was diagnosed as suffering from residuals of a right knee injury. In his March 1992 substantive appeal, the veteran advances that he sustained a chronic right knee problem during active military service which presently necessitates the use of a cane for ambulation. The Board has weighed the probative evidence including the veteran's argument on appeal. The veteran has been found to suffer from patello-femoral chondromalacia of the right knee and a history of right knee trauma during active military service. However, the record does not contain any objective evidence of either the occurrence of a right knee trauma or symptoms indicative of the onset of a chronic acquired right knee disorder during active military service. The notations by the examiners at the August 1990 and March 1992 VA examinations as to a right knee injury during active military service appear to have been based solely upon the veteran's subjective medical history. Indeed, the only right knee abnormality identified during active military service was a multipartite patella shown by X-ray studies. A multipartite patella is a congenital or developmental defect. Medical authorities clarify that: The ossification center of the patella usually makes its appearance between the third and fifth years and gradually enlarges. Occasionally two, rarely more, centers are present and fuse to form the parent bone. When these centers fail to fuse and remain as discrete components of the composite bone, a bipartite, or a tripartite or a multipartite, patella results. The importance of this condition lies in the fact that often it is confused with, or misrepresented as, a fracture, since it is usually discovered on the roentgenogram taken following an injury. Samuel L Turek, M.D., Orthopaedics, Principles and Their Applications, 341 (4th ed. 1984). In the absence of any clinical evidence of a chronic acquired right knee disability during active military service, the Board finds that service connection for the claimed disorder is unwarranted. Accordingly, service connection for a right knee disorder is denied. II. Left Knee Disorder The veteran asserts that he sustained a left knee injury while playing basketball during active military service. A February 1987 naval treatment record conveys that the veteran complained of left knee pain and reported having recently pulled a left thigh muscle while running. Naval medical personnel observed a full range of motion of the left knee and no knee tenderness, effusion, tenderness or other deformity. An impression of left knee pain secondary to a limp associated with a prior left thigh muscle strain was advanced. A July 1988 treatment entry states that the veteran complained of pain over the superior aspect of the left knee. He reported having slipped while going down a ladder and striking his left knee against a ladder rung. The veteran was found to exhibit extreme tenderness over the knee; anterior/superior swelling over the patella; a full range of motion of the knee; no ligamental instability and X-ray evidence of a left multipartite patella. An impression of traumatic bursitis of the left patella was advanced. An August 1988 naval orthopedic evaluation notes that the veteran exhibited moderate limitation of motion of the left knee; swollen and tender pre-patellar bursitis; and no joint line tenderness or ligamental instability. Contemporaneous X-ray studies of the left knee revealed a bipartite left patella and no fractures. The veteran's left knee was subsequently aspirated for blood without fat. An impression of a left knee contusion was advanced. A February 1989 treatment entry notes that the veteran complained of knee pain due to a prior knee trauma. No knee abnormalities were identified upon examination. At the February 1990 physical examination for service separation, the veteran neither complained of nor exhibited a left knee disorder. At the March 1992 VA orthopedic examination for compensation purposes, the veteran complained of left knee pain and soreness. He reported having injured his left knee while playing basketball on a steel deck during active military service and having sustained left thigh gunshot wounds with associated muscle and nerve damage when he was struck by a bullet during a February 1991 robbery. The VA examiner reported that the veteran exhibited exquisite tenderness over the left knee upon manipulation of the joint; swelling of the left knee and the left lower leg; a range of motion of the left knee from 0 to 90 degrees with crepitation; moderate laxity of the left collateral ligament; and non-healed scars over the medial aspect of the left lower thigh, the anterior aspect of the left lower leg, the anterior left tibia just below the left knee and the medial aspect of the left lower leg just below the left ankle. A contemporaneous X-ray study of the left knee showed a bipartite patella with a small superior lateral free fragment and no other abnormalities. The VA radiologist advanced an impression of an essentially normal left knee. The veteran was diagnosed as suffering from residuals of a left knee injury. The Board observes that the most recent orthopedic examination relates that the veteran currently exhibits chronic residuals of a left knee injury, significant left lower extremity gunshot wound residuals and a bipartite left patella. As discussed above in reference to the issue of service connection for a right knee disorder, the veteran's left bipartite patella constitutes a congenital or developmental defect for which service connection may not be granted. 38 C.F.R. § 3.303(c) (1993). The etiology of the veteran's present acquired left knee disability has not been clearly delineated. While acknowledging that a portion of the veteran's left knee impairment must be attributed to his significant post-service left lower extremity gunshot wound residuals, the Board finds that the veteran clearly sustained a significant left knee injury during active military service, albeit somewhat obscured in its effects by the subsequent injury. Given that fact, the evidence is in at least equipoise as to whether the veteran suffers from a chronic left knee disorder which became manifest during active military service. To further delay a decision in this case in an attempt to ascertain with greater precision what elements of any current knee pathology could reasonably be attributed to service as opposed to the post-service gunshot wound would, in the opinion of the Board, unduly prolong the proceedings at hand and be contrary to the veteran's best interests. Upon resolution of reasonable doubt in the veteran's favor, the Board concludes that service connection is warranted for the claimed disorder. Accordingly, service connection is granted for chronic residuals of a left knee injury. III. Right and Left Shoulder Disorder The veteran advances that he sustained chronic right and left shoulder disorders as the result of a motor vehicle accident during active military service. An August 1988 naval treatment entry relates that the veteran complained of shoulder pain exacerbated by arm movement and palpation. He reported having been involved in a motor vehicle accident. An impression of "muscle strain/spasm" was advanced. Naval physical therapy treatment records dated in August 1988 note that the veteran complained of posterior shoulder tightness. He exhibited a range of motion of the shoulders of bilateral abduction to 100 degrees; exquisite tenderness of the upper trapezius muscles and bilateral upper extremity muscle strength of 5/5. The naval medical personnel observed that the veteran's shoulder limitation of motion was secondary to his upper trapezius muscle pain. An impression of moderate to severe cervical strain with a history of an acceleration-deceleration injury was advanced. A November 1988 naval orthopedic examination report notes that the veteran was diagnosed as suffering from cervical and lumbar strain secondary to a motor vehicle accident. The examiner identified no shoulder abnormalities. A November 1988 naval treatment entry states that the veteran exhibited a full range of motion of the upper extremities with no abnormalities. A May 1989 naval orthopedic evaluation found the veteran to be suffering from chronic mechanical thoracic spine pain and identified no shoulder abnormalities. At the February 1990 physical examination for service separation, the veteran neither complained of nor exhibited any shoulder abnormalities. At the March 1992 VA orthopedic examination for compensation purposes, the veteran complained of bilateral shoulder limitation of motion, soreness and aching and right shoulder numbness. He reported having injured his shoulders in a 1988 motor vehicle accident. On examination, the veteran exhibited a range of motion of the right shoulder of forward flexion to 180 degrees, abduction to 130 degrees, and internal and external rotation to 90 degrees; a range of motion of the left shoulder of forward flexion to 140 degrees, abduction to 130 degrees, and internal and external rotation to 90 degrees; crepitation on movement of the shoulders; and tenderness on manipulation of the shoulders. Contemporaneous X-ray studies of the shoulders revealed an irregularity of contour of the left distal clavicle at the acromioclavicular joint "probably due to previous trauma" and no other abnormalities. The VA radiologist advanced an impression of essentially normal shoulders. The veteran was diagnosed as suffering from residuals of a bilateral shoulder injury. The Board has made a careful longitudinal review of the record. Although the veteran complained of some subjective bilateral shoulder discomfort in the aftermath of his 1988 motor vehicle accident, the subsequent exhaustive naval orthopedic evaluations and the physical examination for service separation identified no shoulder abnormalities. Given this fact, the Board finds that the veteran's inservice complaints were acute and transitory in nature and resolved themselves without chronic residuals. The first clinical evidence of a chronic shoulder disorder was identified at the March 1992 VA examination. In the absence of any objective evidence establishing the onset of a chronic shoulder disorder during active military service, service connection for the veteran's present shoulder disabilities is not warranted. Accordingly, service connection for a chronic right shoulder disorder and a chronic left shoulder disorder is denied. IV. Right Ankle Disorder The record is devoid of any objective evidence of a right ankle disorder during active military service or at any time thereafter. In the absence of such evidence, the Board finds that service connection is not warranted for the claimed disorder. Accordingly, service connection for a right ankle disorder is denied. V. Dorsal (Thoracic) Spine Disorder A. Historical Review The veteran's service medical records indicate that he injured his back in an August 1988 motor vehicle accident. A June 1989 naval orthopedic evaluation diagnosed the veteran as suffering from chronic mechanical thoracic spine pain. In December 1990, service connection was established for residuals of an injury to the dorsal (thoracic) spine with some limitation of motion evaluated as 10 percent disabling. B. Increased Disability Evaluation Disability evaluations are determined by comparing the veteran's present symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). Moderate or severe limitation of motion of the dorsal (thoracic) segment of the spine warrants a 10 percent disability evaluation. 38 C.F.R. Part 4, Diagnostic Code 5291 (1993). The Board observes that the veteran is currently in receipt of the maximum evaluation available under Diagnostic Code 5291. The provisions of 38 C.F.R. § 3.321(b)(1) (1993) direct that an extraschedular disability evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability will be awarded where the veteran's case presents such an exceptional or unusual disability picture as to render the application of the regular schedular standards impractical. At the December 1990 VA examination for compensation purposes, the veteran complained of chronic pain and stiffness of the thoracic spine which was aggravated by bending and alleviated by rest. He reported having been injured in an August 1988 motor vehicle accident; receiving ineffective steroid injections to the back; and using a corset to ambulate. The VA examiner observed that the veteran ambulated with a reciprocating heel/toe gait with slightly diminished stride length and cadence; was able to remove his clothes with slight stiffness; and wore a buttoned lumbosacral corset. The veteran exhibited a range of motion of the spine of forward flexion to 70 degrees, extension to 18 degrees, bilateral bending to 26 degrees, right rotation to 28 degrees, left rotation to 24 degrees; normal thoracic kyphosis, normal lower extremity muscle strength; normal reflexes; and no paravertebral muscle spasms, sensory abnormalities or scoliosis. A contemporaneous X-ray study of the thoracic spine revealed no abnormalities. The veteran was diagnosed as suffering from chronic thoracolumbar back pain secondary to ligamentous strain. A December 1991 VA X-ray study revealed no abnormalities of the thoracic spine. The Board has carefully weighed the probative evidence and the veteran's argument on appeal. The veteran's service-connected disability is productive of severe limitation of motion of the dorsal (thoracic) segment of the spine and clearly merits the present 10 percent disability evaluation. Indeed, the veteran's service-connected symptomatology falls squarely within the schedular criteria set forth by the provisions of 38 C.F.R. Part 4, Diagnostic Code 5291 (1993). Therefore, the Board concludes that it is not productive of such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (1993). Accordingly, a disability evaluation in excess of 10 percent for the veteran's service-connected back disorder is denied. ORDER Service connection for a chronic right knee disorder is denied. Service connection for chronic residuals of a left knee injury is granted. Service connection for a chronic right shoulder disorder is denied. Service connection for a chronic left shoulder disorder is denied. Service connection for a chronic right ankle disorder is denied. An increased disability evaluation for the veteran's service-connected residuals of injury to the dorsal (thoracic) spine is denied. JEFF MARTIN 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. (CONTINUED ON NEXT PAGE) NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board granting less than the complete benefit, or benefits, sought on appeal is appealable to the Court 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.