BVA9503633 DOCKET NO. 91-47 189 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for sinus disability. 2. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for rheumatic heart disease. 3. Whether new and material evidence has been submitted to reopen the veteran's claim for service connection for residuals of skin irritation due to wool allergy. 4. Entitlement to service connection for arthritis of multiple joints. 5. Entitlement to service connection for residuals of scarlet fever. 6. Entitlement to an increased evaluation for residuals of left tibial osteotomy with traumatic arthritis, currently rated as 20 percent disabling. 7. Entitlement to a total disability rating on the basis of individual unemployability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The veteran served on active duty from November 1942 to August 1944. In July 1992, the Board of Veterans' Appeals (Board) remanded this case to the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida for additional development, to include adjudication of the issues of whether new and material evidence had been submitted to reopen the veteran's claims for service connection for rheumatic heart disease and sinus disability, as well as the issues of entitlement to service connection for arthritis of multiple joints and residuals of scarlet fever and entitlement to a total disability rating on the basis of individual unemployability. This has now been done, and the case has been returned for final adjudication. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the benefits sought are in order because Ralph O. Ward's December 1992 lay statement is new and material evidence that the veteran was hospitalized for rheumatic fever in service; because his skin disorder, sinus disorder, arthritis of multiple joints, and residuals of scarlet fever were all incurred as a result of his military service; because his service-connected residuals of left osteotomy with traumatic arthritis are 30 percent disabling; and because James A. Poyner, M.D., has stated that the veteran is totally disabled. It is maintained that the records of the veteran's service hospitalization for rheumatic fever should be obtained and that the August 1992 VA examination was inadequate and should be repeated. 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 new and material evidence to reopen the veteran's claims for service connection for sinus disability, rheumatic heart disease, and residuals of skin irritation due to wool allergy has not been submitted. It is also 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 arthritis of multiple joints and residuals of scarlet fever are well-grounded. The Board further finds that the preponderance of the evidence is against the veteran's claims for an evaluation in excess of 20 percent for residuals of left tibia osteotomy with traumatic arthritis and for a total rating on the basis of individual unemployability. FINDINGS OF FACT 1. Satisfactory effort has been made to obtain all relevant evidence necessary for an equitable determination of the veteran's appeal. 2. A December 1946 unappealed rating decision denied service connection for sinus disability; evidence received since the December 1946 decision does not present a reasonable possibility of changing the outcome of the prior decision. 3. An August 1979 rating decision denied service connection for heart disease and rheumatic fever; the veteran perfected no appeal, and evidence received since the August 1979 decision does not present a reasonable possibility of changing the outcome of the prior decision. 4. A January 1986 Board decision denied service connection for a chronic skin disorder, and the subsequently received evidence does not present a reasonable possibility of changing the outcome of the prior decision. 5. The claims for service connection for arthritis of multiple joints and residuals of scarlet fever are not plausible. 6. Range of motion of the left leg was from 0 to 135 degrees, and there was no evidence of subluxation or instability on VA examination in August 1992. 7. The veteran's residuals of left tibial osteotomy with traumatic arthritis do not involve an unusual disability picture with such factors as marked interference with employment or frequent periods of hospitalization. 8. The veteran is currently service connected only for residuals of left tibial osteotomy with traumatic arthritis, rated as 20 percent disabling. 9. The veteran has completed the 8th grade and has worked as a supervisor for a paper company. 10. The veteran last worked full-time in 1976. 11. The veteran's service-connected disorder is not severe enough to effectively preclude substantially gainful employment consistent with his educational background and work experience. CONCLUSIONS OF LAW 1. New and material evidence to reopen the veteran's claims for service connection for sinus disability, rheumatic heart disease, and residuals of skin irritation due to wool allergy has not been submitted. 38 U.S.C.A. §§ 5108, 7104, 7105 (West 1991); 38 C.F.R. § 3.156(a) (1993). 2. The claims for service connection for arthritis of multiple joints and residuals of scarlet fever are not well-grounded. 38 U.S.C.A. § 5107(a) (West 1991). 3. An evaluation in excess of 20 percent for residuals of left tibial osteotomy with traumatic arthritis is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.71a, Diagnostic Codes 5010, 5257, 5260, 5261 (1993). 4. The veteran is not unemployable by reason of his service- connected disability. 38 U.S.C.A. §§ 1155, 5107(a); 38 C.F.R. § 3.340, Part 4, § 4.16 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS To establish service connection for a claimed disability, the facts, as shown by the evidence, must demonstrate that a disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. § 1110 (West 1991). Service connection may also be granted on a presumptive basis for certain chronic disabilities, including arthritis, when manifested to a compensable degree within a year after service discharge. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). New and Material Evidence A December 1946 unappealed rating decision denied service connection for a sinus disability; an August 1979 unappealed rating decision denied service connection for heart disease and rheumatic fever; and a January 1986 Board decision denied service connection for a chronic skin disorder. These denials are all final on the same factual basis. See 38 U.S.C.A. §§ 7104, 7105, as well as Veterans Regulation No 2(a), pt.II, par.III; Department of Veterans Affairs Regulation 1008; effective in December 1946. Although these claims have been previously denied, the claims will be reopened if new and material evidence is submitted in support thereof. 38 U.S.C.A. § 5108. To be "new and material," the evidence must be more than merely cumulative; there must be a reasonable possibility that consideration of the new evidence, when viewed in the context of all of the evidence, would change the outcome of the prior decision. Colvin v. Derwinski, 1 Vet.App. 171 (1991). The evidence on file at the time of the December 1946 rating action that denied service connection for a sinus disorder consisted of the veteran's service medical records and his original claim. His service medical records reveal that he was admitted to a Coast Guard Training Station in March 1944 with a temperature of 99.2 degrees and symptoms of a common cold and scabies. It was noted during hospitalization that his nose was congested. His condition improved, and he was discharged later in March 1944 with diagnoses of scabies and common cold. The veteran was hospitalized in April 1944 for a common cold. He had a temperature of 99.2 degrees and headaches. His temperature went up to 103.6 degrees the following day, and it was noted that he had a fine papular rash, sore throat, conjunctivitis, and post-annicular nodes. It was thought that the veteran had rubella, and he was transferred to the United States Public Hospital Service Hospital at Sheepshead Bay later in April 1944. Physical examination on transfer admission revealed a few small red areas over the chest and a slightly injected pharynx. His temperature subsided the day after his transfer and the red spots on his chest cleared. X-ray studies reportedly showed a small patch of pneumonitis in the lower portion of the left lower lobe. Stool examination revealed ova of necatur americanus. X-ray studies of the sinuses were termed negative. He was treated for his pneumonitis and parasites. The discharge diagnoses in May 1944 were pneumonitis of the left lower lobe, Giardia infection of the intestine, and intestinal ancylostomiasis. A Board of Medical Survey concluded in June 1944 that the veteran had a reading disability and was intellectually inadequate; it was recommended that he be given a medical discharge. He noted sinus troubles on his original claim, which was received by the VA in April 1946. The RO denied the claim as not shown by the evidence of record. The veteran did not appeal. Evidence received since December 1946 consists of lay statements and affidavits, private physicians' and hospital records, VA examination reports, a counseling and rehabilitation folder, and statements from the veteran. September 1949 x-ray studies of the sinuses by John T. Mitchell, M.D., revealed minimal frontal and maxillary sinus changes. A September 1949 medical report from Charles H. Daffin, M.D., contains a diagnosis of possible chronic sinusitis, mild, in remission. The veteran gave history that his sinuses had been "washed out" in March 1944. According to an August 1952 application for hospital treatment, the veteran had had allergic rhinitis for the previous 5 to 6 years, with spells of sinusitis; allergic rhinitis and chronic sinusitis were diagnosed. VA outpatient records for October 1952 reveal that x-ray studies of the paranasal sinuses did not show any evidence of exudative or hyperplastic changes; allergic rhinitis was diagnosed. Subsequent medical records on file do not contain any complaints or findings of sinusitis, including the report of VA general examination in August 1978. Since there is no medical opinion relating the veteran's post-service sinus problems to service and no recent findings of sinusitis have been made, the Board must conclude that the evidence received by VA since December 1946 does not present a reasonable possibility that, when reviewed in the context of all the evidence, it would change the outcome of the December 1946 denial. 38 C.F.R. § 3.156(a). The evidence on file at the time of the August 1979 rating decision that denied service connection for heart disease and rheumatic fever consisted of the evidence noted above, as well as additional lay observations, private physicians' reports, a VA examination report, and the veteran's statements. Although the veteran maintains that he was hospitalized in service for rheumatic fever, and November 1947 lay affidavits from fellow servicemen note that he was hospitalized at Sheepshead Bay from March to June 1944 for an unspecified disability, his service medical records reveal that, as indicated above, he was hospitalized at Sheepshead Bay in April and May 1944 for pneumonitis and intestinal problems related to parasites. The first medical evidence of heart disease was a June 1976 statement from James A. Poyner, M.D., which revealed that the veteran, over the previous year, had developed severe heart disease requiring open heart surgery. According to an April 1977 statement from Curtis Williams, M.D., of the Medical Center Clinic, the veteran was totally disabled due to severe coronary artery disease. The RO denied the claim in August 1979, and the veteran disagreed. However, he did not appeal from a subsequent statement of the case. Although the clinical evidence received after August 1979 continued to diagnose heart disease, there was no reference to rheumatic fever or rheumatic heart disease and no medical notation that the veteran's heart disease was in any way related to his military service. Consequently, the Board concludes that the evidence received by VA since August 1979 does not present a reasonable possibility that, when reviewed in the context of all the evidence, it would change the outcome of the August 1979 denial. Id. The evidence on file at the time of the January 1986 Board decision that denied service connection for a skin disorder, in addition to that already discussed, consisted of two private medical reports and a statement from a registered nurse. The veteran's service medical records reveal that scabies was diagnosed and treated in March 1944. The first post-service notation of a skin problem was not until December 1983, when the veteran was treated for urticaria. The only evidence received after January 1986 that refers to the veteran's skin are December 1983 to August 1988 outpatient records from Dermatology Associates, received by the VA in 1993, which noted xerosis, tinea pedis, and mild dermatitis. Because the evidence received since January 1986 does not show any etiological connection between the recently diagnosed skin problems and the veteran's military service, the Board also concludes that the evidence received by VA since January 1986 does not present a reasonable possibility that, when reviewed in the context of all the evidence, it would change the outcome of the January 1986 denial. Id. In none of the above three cases, then, has new and material evidence been furnished so as to allow for reopening of the claims involved. Not Well-Grounded A person who submits a claim for benefits under a law administered by VA shall have the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well-grounded; if a claim is not well-grounded, VA does not have a duty to assist the claimant in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Moreover, where the determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required to establish that the claim is well-grounded. Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). The veteran's service medical records do not contain any complaints or findings of either chronic joint disability, other than that due to his service-connected osteochondroma of the left tibia, or scarlet fever. Additionally, there is no evidence of arthritis within a year of service discharge. In fact, there is no clinical evidence on file of either arthritis of multiple joints or scarlet fever. Since there is no medical evidence on file of the disabilities at issue, the Board must conclude that the veteran's claims for service connection for arthritis of multiple joints and for residuals of scarlet fever are not well- grounded. 38 U.S.C.A. § 5107(a). Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When 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 (1993). The veteran is currently assigned a 20 percent evaluation for his service-connected residuals of left tibial osteotomy with traumatic arthritis under Diagnostic Code 5010. According to the VA Schedule for Rating Disabilities, arthritis due to trauma, which is substantiated by x-ray findings, is rated as degenerative arthritis under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. According to Diagnostic Codes 5260 and 5261, an evaluation of 20 percent is provided when flexion of the leg is limited to 30 degrees or when extension is limited to 15 degrees; a 30 percent evaluation is provided when flexion is limited to 15 degrees or when extension is limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Other knee impairment, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate or a 30 percent evaluation if it is severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (1993) 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 left knee disability. The Board has found nothing in the historical record which would lead us to conclude that the current evidence of record is not adequate for rating purposes, nor have we found any of the historical evidence in this case to be of sufficient significance to warrant a specific discussion herein. The veteran complained of left knee pain on VA orthopedic examination in May 1989. He said that he was unable to kneel or squat. Examination of the knee revealed that the veteran was able to fully extend the knee but could only flex it to approximately 75 degrees. There was no swelling, and passive motion did not cause any pain. X-ray studies of the left lower leg showed minimal degenerative changes in the knee joint. Status postoperative left tibia operation with probable post- traumatic arthritis of the left knee was diagnosed. According to a December 1990 medical report from Michael X. Rohan, M.D., the veteran complained of pain in the left knee and difficulty squatting. Examination of the knee revealed motion from 0 degrees of extension to 90 degrees of flexion. There was no ligamentous instability and no swelling; mild diffuse tenderness was noted. X-rays of the knee reportedly showed a small spur over the inferior aspect of the patella on the lateral side and a little deterioration in the intercondylar notch. Dr. Rohan's impression was mild degenerative arthritis of the left knee. A July 1991 statement from Dr. Poyner reveals that the veteran's left lower leg disability had become progressively worse over the 20 years that he had treated the veteran. According to an August 1992 special VA examination of the veteran's left lower extremity, he walked with an overall satisfactory gait pattern. Range of motion of the left knee was from 0 degrees of extension to 135 degrees of flexion, with difficulty. There was pain on full flexion of the knee. No definite redness, heat, or swelling was noted. There was tenderness in the area of the tibial surgical scar. X-ray studies of the left knee showed degenerative changes. The examiner's impression was post-operative excision of osteochondroma of the anterior aspect of the left proximal tibia. Dr. Poyner indicated in a November 1992 statement that he had seen the veteran periodically over the previous 20 years for his left lower extremity and that no specific treatment had been rendered on a regular basis other than giving the veteran mild analgesics to relieve the pain associated with the disability. The above evidence reveals that although the veteran continues to have pain in his left lower extremity, range of motion of the extremity has improved since December 1990 to some 135 degrees. Additionally, he does not have left knee instability or swelling. Therefore, motion of the left lower extremity does not approach the requirements for an evaluation in excess of 20 percent under Diagnostic Codes 5260 and 5261. 38 C.F.R. § 4.71a. Moreover, since there is no evidence of recurrent subluxation or lateral instability, an increased evaluation under Diagnostic Code 5257 is also clearly not warranted. Id. In view of the good range of left knee motion and the absence of instability or episodes of locking, the disability picture is obviously not severe, and does not more nearly approximate the criteria for an evaluation of 30 percent. 38 C.F.R. § 4.7. The Board has also considered the provisions of 38 C.F.R. 3.321(b)(1) regarding the assignment of extraschedular evaluations. However, the disability picture for the veteran's service-connected left lower extremity disability is not so exceptional or unusual, with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. Although the veteran believes that the August 1992 VA examination was inadequate and should be repeated, he fails to provide any objective evidence that the August 1992 results are inaccurate. The report, on its face, seems adequate. Individual Unemployability To warrant a total rating based upon individual unemployability, the veteran's service-connected disability must be severe enough, in light of his educational background and employment history, to render him unable to secure and follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16. According to the evidence on file, the veteran has completed the eighth grade and has worked as a supervisor for a paper company. He last worked full- time in 1976. The veteran's only service connected disability is residuals of left tibial osteotomy with traumatic arthritis, currently rated as 20 percent disabling. As noted above, this disability causes the veteran pain and slight limitation of motion, but there is no significant gait abnormality or left leg instability. Although Dr. Poyner is cited on behalf of the veteran in support of the claim for a total rating, the Board notes that Dr. Poyner's statements that the veteran is unemployable are based primarily on the severity of his nonservice-connected heart disease and not on his service-connected left lower extremity disability. Consequently, the Board concludes that a total rating is not warranted because the veteran's service-connected disorder is not nearly severe enough, by itself, to preclude substantially gainful employment in keeping with his educational background and work experience. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.340, Part 4. § 4.16. ORDER New and material evidence not having been submitted, the requests to reopen the claims for service connection for sinus disability, rheumatic heart disease, and residuals of skin irritation due to wool allergy are denied. Evidence of well-grounded claims for service connection for arthritis of multiple joints and residuals of scarlet fever not having been submitted, the claims are dismissed. An evaluation in excess of 20 percent for residuals of left tibial osteotomy with traumatic arthritis is denied. A total rating on the basis of individual unemployability is denied. J. J. SCHULE 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 (CONTINUED ON NEXT PAGE) 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.