Citation Nr: 0007820 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 95-22 158 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to service connection for a right hip disorder claimed as secondary to service-connected right knee disability. 2. Entitlement to service connection for residuals of measles, to include autoimmune disease and nose and throat disabilities. 3. Entitlement to an increased evaluation for service- connected right knee disability, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from December 1942 to October 1943. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In a July 1994 rating decision, the RO denied a claim of entitlement to service connection for a right hip disorder, claimed as secondary to a service- connected right knee disability. The RO also confirmed a 30 percent evaluation for a service-connected right knee disorder, status post right total knee replacement. The veteran disagreed with these determinations by a statement submitted in September 1994, and submitted additional claims. By a February 1995 rating decision, the RO, in pertinent part, denied a claim of service connection for residuals of measles. In a substantive appeal submitted in April 1996, following a February 1996 statement of the case as to a claim for service connection for residuals of measles, the veteran requested a Travel Board hearing. By a statement submitted in October 1999, that request for hearing was withdrawn. The veteran has been afforded his right to a hearing, and the Board may proceed with appellate review. The veteran filed several claims of entitlement to service connection by a statement submitted in September 1994. He was informed of the status of these claims in November 1994, and disagreed with those determinations. However, he did not thereafter submit timely substantive appeals. A VA Form 9 submitted in April 1996 was not a timely substantive appeal as to any issue not listed on the title page of this decision, and only those issues listed on the title page of this decision are properly before the Board for appellate review at this time. The Board also notes that, in a statement submitted in February 1999, the veteran discussed his claims, including claims regarding "opposing members." It is not clear whether the veteran was attempting to raise new or additional claims by this statement. This statement is referred to the RO for clarification with the veteran. FINDINGS OF FACT 1. The preponderance of the medical evidence establishes that the veteran's current right hip disorder is not etiologically related to or secondary to a right knee disability incurred in service. 2. The veteran has not presented competent medical evidence that he currently has a medical diagnosis of any residuals of measles incurred in service, nor is there medical evidence or opinion that an autoimmune disease or nose and throat disorders are etiologically related to measles or other disease or injury incurred in service. 3. The veteran's service-connected right knee disability is currently manifested by pain, weakness, stiffness, swelling, some limitation of motion, and fatigability, but not by instability or subluxation. CONCLUSIONS OF LAW 1. A right hip disorder was not incurred or aggravated in service or as the result of a service-connected disability, nor may it be presumed to have been incurred in or aggravated by such military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1999). 2. The veteran has not submitted a well-grounded claim of entitlement to service connection for residuals of measles. 38 U.S.C.A. § 5107(a) (West 1991). 3. The criteria for a 60 percent evaluation for service- connected right knee disability, status post total knee replacement, are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 1999); 38 C.F.R. § 4.71a Diagnostic Code 5055 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he incurred a right hip disorder and residuals of measles in service. The veteran also contends that he is entitled to an evaluation in excess of 30 percent for his service-connected right knee disability. In order to establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a particular injury or disease resulting in a current disability was incurred in or aggravated coincident with active military service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may be granted for certain diseases defined as chronic, if the disease is manifested, generally to a degree of 10 percent or more, within a specified presumptive period after separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1153; 38 C.F.R. §§ 3.303, 3.307, 3.309. Arthritis is defined as a chronic disease which may be presumed service-connected. Id. In addition, a well-grounded claim may be established under 38 C.F.R. § 3.303(b) when the evidence, regardless of its date, shows that a veteran had a chronic condition in service or during an applicable presumption period and still has such a condition. Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Such evidence must be medical unless it relates to a condition as to which, under the Court's case law, lay observation is competent. If the chronicity provision is not applicable, a claim may still be well grounded on the basis of § 3.303(b) if the condition observed during service or any applicable presumption period still exists, continuity of symptomatology is demonstrated thereafter, and competent evidence relates the present condition to that symptomatology. Savage, 10 Vet. App. at 498. However, the first step in reviewing a claim for service connection is to determine whether the veteran has presented a well-grounded claim. In this regard, the veteran bears the burden of submitting sufficient evidence to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a); Robinette v. Brown, 8 Vet. App. 69, 73 (1995). Simply stated, a well-grounded claim must be plausible or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Where the determinative issue involves medical etiology or a medical diagnosis, competent medical evidence that a claim is "plausible" or "possible" is required for the claim to be well grounded. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997); Heuer v. Brown, 7 Vet. App. 379, 384 (1995). This burden may not be met merely by presenting lay testimony, because lay persons are not competent to offer medical opinions. Epps, supra; Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Establishing a well-grounded claim of entitlement to service connection generally requires: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Epps, 126 F.3d at 1468-70; Caluza v. Brown, 6 Vet. App. 489, 507 (1995). In the absence of evidence of a well-grounded claim, there is no duty to assist the claimant in developing the facts pertinent to the claim. Epps, 126 F.3d at 1469. Regarding the veteran's claim for an increased evaluation for his service-connected right knee disability, the Board notes that an allegation that a service-connected disorder has become more severe is sufficient to well-ground a claim for increase. Proscelle v. Derwinski, 2 Vet. App. 629, 631-32 (1992). The Board is also satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required in order to comply with the duty to assist. It is noted in this regard that the veteran was afforded multiple VA examinations. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Claim for Service Connection for Right Hip Disorder The veteran's service medical records reflect that he sustained a right knee injury in service, with chronic residuals thereafter during service and proximate to service. The service medical records, however, are devoid of any complaints or diagnosis of a right hip disorder. Post- service VA examinations and inpatient and outpatient records for the year following the veteran's service discharge, and for many years thereafter, are likewise devoid of any right hip complaints or diagnosis of any right hip disorder. VA clinical records reflect that the veteran underwent right total knee replacement in March 1993. In March 1994, about a year following that right knee replacement, the veteran complained of pain and limitation of motion of the right hip, of about six weeks' duration. The veteran reported having fallen. On radiologic examination, sclerotic changes in the femoral neck were noted. After further evaluation, the veteran was determined to have a right hip fracture. On VA examination conducted in April 1994, the examiner concluded that the veteran's right hip pain did not seem to be related to right knee pain. The examiner who conducted an August 1995 VA examination concluded that there did not appear to be a direct relationship between a service- connected right knee disability and a right hip stress fracture. However, the examiner added that "there may be some slight relationship because of having the total knee replacement." The examiner who conducted a November 1995 VA examination concluded that there was no relationship between the veteran's right total knee replacement and a right hip fracture. Finally, in a medical opinion provided in October 1999, which reflects review of the veteran's clinical records and history, the reviewer concluded that "there is no connection whatsoever" between the veteran's degenerative arthritic right hip disorder and his service-connected right knee condition. The reviewer stated that he based his opinion on the fact that the veteran, who is more than 80 years of age, has developed degenerative arthritis in multiple joints, and there is "very little" indication in the literature that a total knee disorder will aggravate a hip disorder "in any way." The Board has considered each item of medical evidence of record. One VA medical examiner indicated that there was "some slight" possibility of a relationship between the veteran's service-connected right knee disorder and his current right hip disorder. This opinion establishes that a relationship between the service-connected disability and the claimed disorder is medically plausible, and is therefore sufficient to establish a well-grounded claim. However, as the opinion specifically stated that the possibility of such etiological relationship was "slight," this evidence did not establish that the veteran's service-connected right knee disability was the cause of the veteran's right hip fracture or arthritis, nor did the opinion that there was a "slight" possibility of such relationship place the evidence in equipoise. Following that opinion, the veteran was afforded additional VA examination and a review of the entire claims file for purposes of opinion. The examiner who conducted a November 1995 VA examination provided an opinion that "the right hip condition is not related" to the service-connected right knee disability or right total knee replacement. The reviewer who conducted an October 1999 review concluded that there was "no relationship whatsoever" between the veteran's right knee disability and a right hip disorder which developed many years after service. The Board notes that even the VA opinion most favorable to the veteran suggested that the possibility of the etiologic relationship asserted by the veteran was slight; two other VA medical opinions directly contradict the veteran's assertion. The Board therefore finds that the preponderance of the evidence is against the veteran's claim that he developed a right hip disorder as a result of his service-connected right knee disability. In reaching this decision, the Board has been mindful of the provisions of 38 U.S.C.A. § 5107(b). However, the negative evidence is not in a state of equipoise with the positive evidence so as to otherwise provide a basis for favorable resolution of the veteran's appeal. 2. Claim for Service Connection for Residuals of Measles The service medical records reflect that the veteran incurred measles in service. The in-service records are, however, devoid of any complaint of, diagnosis of, or record of treatment of any residual of measles. The veteran contends that he now has autoimmune disorders and/or nose and throat disorders as a residual or result of measles incurred in service. The medical evidence as a whole establishes that the veteran does have numerous medical disorders, including systemic lupus erythematosus (commonly known to be an autoimmune disorder), as well as various respiratory disorders, diagnosed as "farmer's lung," asthma, and chronic obstructive pulmonary disease. The Board notes that these disorders were first manifested at different times, but none were manifested within one year after the veteran's service discharge. A review of the evidence reveals that, although the veteran suffers from numerous medical disorders, there is no medical diagnosis of a disorder residual to measles. Further, there is no medical opinion that the veteran has a current disorder as a residual of, as a result of, or etiologically related to measles. While the evidence establishes that the veteran has diagnoses of various nose and throat disorders, there is no medical evidence establishing or suggesting that any of these disorders are in any way related to the veteran's history of measles. In the absence of a medical diagnosis of a current disorder due to measles, the veteran has failed to prove an essential element of a well-grounded claim, i.e., the existence of the claimed disorder. See Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Moreover, there is no evidence, other than the veteran's own contentions, which would tend to establish that the veteran has an autoimmune disorder or a nose or throat disorder which is related to measles or to any incident of the veteran's service. The Board does not doubt the sincerity of the veteran's belief that he has residuals of measles incurred in service. However, as the veteran is not a medical expert, he is not qualified to express an opinion regarding the medical causation of any current disorders. Espiritu, 2 Vet. App. at 494-5. The veteran's contention that autoimmune, nose, or throat disorders, if present, are due to a disease incurred in service cannot be accepted as competent evidence to establish such an etiologic link. Thus, the veteran has failed to meet the third element of the evidentiary requirements for establishing a well-grounded claim. The claim is not well grounded. 3. Claim for Increased Evaluation for Right Knee Disability Historically, the veteran reported injuring his right knee in service, and he was granted service connection for right knee disability, effective following his service separation. The disability was initially evaluated under Diagnostic Code 5003-5010 following service and for many years thereafter. In April 1993, the veteran underwent right total knee replacement. Subsequent to this surgery, the veteran's right knee disability was evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5055, which specifies the criteria for evaluation of prosthetic replacement of a knee joint. As required under Diagnostic Code 5055, the veteran was assigned a 100 percent rating for the requisite one year following surgery, from June 1, 1993 to June 1, 1994. When the period for assignment of the 100 percent evaluation expired, a 30 percent rating was assigned. The veteran has disagreed with that 30 percent evaluation. According to the schedular criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5055, after a 100 percent evaluation is in effect for one year following a knee replacement, a minimum rating of 30 percent may be assigned for prosthetic replacement of a knee joint, with intermediate degrees of residual weakness, pain, or limitation of motion, rated by analogy to Diagnostic Codes 5256, 5261, or 5262. With chronic residuals consisting of painful motion or weakness in the affected extremity, a 60 percent rating is assigned. On VA examination conducted in March 1998, the veteran reported using a cane to assist in ambulation, or at times, a walker. He reported nearly constant knee pain, weakness, stiffness, swelling, and fatigability, with loss of endurance at both knees, worse in the right knee. The veteran reported severe pain on standing or with prolonged standing and walking. The veteran's gait was antalgic. He was able to walk on his toes and heels, but was unable to hop, and squatting was difficult. There was no evidence of tenderness or pain with motion of the right knee. There was no varus or valgus instability. The right knee was visibly swollen. Range of motion of the knee was from extension to zero degrees and active flexion of 125 degrees. Strength was 4/5. The examiner concluded that the veteran had traumatic arthritis with osteochondritis desiccans of the right knee, status post total knee replacement. The March 1998 VA examination, the most recent medical evidence of record, reflects that the veteran requires an assistive device when walking, as a result of his service- connected right knee replacement. That examination reflects that he has significant chronic pain. There is objective medical evidence of some weakness in the right knee, although that weakness, 4/5, does not appear severe. There is objective medical evidence of stiffness, swelling, and fatigability. There was objective evidence of loss of range of motion, although the veteran retained considerable motion, from zero degrees of extension to 125 degrees of flexion. The Board finds that the veteran's residuals of weakness, pain, and limitation of motion, considered together with the evidence of swelling, fatigability, and need for an assistive device for ambulation, exceed the criteria for the minimum, 30 percent evaluation. Accordingly, since the extent to which the 30 percent criteria are exceeded may not be evaluated by analogy, the Board finds that the preponderance of the evidence supports a 60 percent evaluation. 38 C.F.R. § 4.7. See also Sagnella v. West, 1999 U.S. App. Vet. Claims LEXIS 1267 (non-precedential). ORDER Entitlement to service connection for a right hip disorder, claimed as secondary to service-connected right knee disability, is denied. Entitlement to service connection for residuals of measles, to include autoimmune disease and nose and throat disabilities, is denied. A 60 percent evaluation for service-connected right knee disability is granted, subject to the laws and regulations governing monetary awards. WARREN W. RICE, JR. Member, Board of Veterans' Appeals