BVA9500851 DOCKET NO. 93-10 664 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an increased rating for residuals of an injury to the right knee, currently evaluated as 20 percent disabling. 2. Entitlement to service connection for a back disability on a secondary basis. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Milo H. Hawley, Counsel INTRODUCTION The veteran had active service from June 1966 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1992 rating decision by the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi (RO), which denied an increased rating for the right knee disability and service connection for a back disability on a secondary basis. While the August 1992 rating decision noted a prior rating action of July 1973 which denied service connection for a back disability on a direct basis, it is clear that the veteran's June 1992 claim with respect to service connection for a back disability was on a secondary basis, and that the August 1992 rating decision denial related to service connection for a back disability on a secondary basis. Although the statement of the case includes a regulation concerning finality, it again states its decision and reason for decision relative to secondary service connection. The veteran's representative, in a written statement submitted in August 1993, has requested that service connection for a back condition on a direct basis be considered. The representative also raised the issue of clear and unmistakable error in the July 1973 rating decision. These issues are referred to the RO for its consideration. CONTENTIONS OF APPELLANT ON APPEAL It is contended that the veteran's right knee disability is more disabling than currently evaluated. It is asserted that the veteran occasionally wears a knee bandage and that the knee always feels like it could give way. It has been asserted that the veteran has constant knee pain, and that the veteran's right knee has caused him to have problems with his back. 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 a preponderance of the evidence is against an increased evaluation for the right knee disability and 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 claim for service connection for a back disability on a secondary basis is well grounded. FINDINGS OF FACT 1. With respect to the increased rating, all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The veteran's service-connected right knee disability is manifested by pain, minimal limitation of motion, a trace of effusion, a 2-centimeter well-healed scar anteromedially, marked tenderness to palpation just posterior to the scar over the medial patellar retinaculum, and moderate tricompartmental degenerative joint disease. 3. No expert opinion or other medical evidence to associate the veteran's back disability with his service-connected right knee disability has been presented. CONCLUSIONS OF LAW 1. An evaluation greater than 20 percent for a right knee disability is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, Part 4, Codes 5010, 5256, 5257, 5260, 5261 (1993). 2. With respect to service connection for a back disability on a secondary basis, evidence of a well-grounded claim has not been submitted. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.310(a) (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Right Knee Service medical records reflect that the veteran was seen with complaints concerning his right knee from 1966 to June 1969. The report of his March 1969 service separation examination and asociated medical history reflect that he reported occasional pain in his right knee and occasional swelling. Examination revealed no abnormality of the right knee. A June 1973 VA hospital discharge summary states that physical examination was essentially within normal limits. A June 1973 rating decision granted service connection for residuals of an injury to the right knee, and assigned a noncompensable evaluation. The report of a January 1987 VA orthopedic examination states that the veteran's right knee had range of motion from 0 to 135 degrees with apparent discomfort. Manipulation of the right knee produced a "klunk" at 130 degrees' flexion and a less definite crepitation at 15 and 50 degrees especially with valgus "spring" in both internal and external rotation. There was nonspecific crepitation under the right patella and the right thigh was one-half inch smaller than the left with the knee one- half inch greater than the left. There was no neurological or vascular deficiency. X-rays of the right knee revealed moderate to early permanent degrees of osteophyte formation involving the lateral joint compartment and a small osseous fragment adjacent to the posterior lip of the lateral tibial plateau. The diagnosis was old injuries to the right knee with anterior cruciate deficiency and degenerative changes. A rating decision in February 1987 increased the evaluation for the right knee disability to 10 percent disabling from December 5, 1986. The report of a September 1989 VA orthopedic examination states that the veteran had a right short weight-bearing limp which was variable. He reported that walking on his toes hurt his right knee. Range of motion of the right knee was from 5 to 125 degrees. There was nonspecific crepitation in both knees and no real pivot shift on the right. The right thigh was one-half inch smaller than the left and the knee was one-half inch larger. The veteran reported numbness around the right knee, but not in an anatomical pattern. X-rays of the right knee revealed degenerative changes. The impression was old injury to the right knee with anterior cruciate laxity, mild collateral laxity, chronic effusion with symptoms of traumatic osteoarthritis and slight limitation of motion. A January 1990 rating decision granted a 20 percent evaluation from April 14, 1988. That evaluation has remained in effect until the present time. A November 1989 report from Mercy Hospital, received in April 1990, states that the veteran reported that he twisted his right knee while walking on ice. He denied falling. Examination did not reveal any gross swelling. There was no effusion and he had full range of motion without laxity. There was mild tenderness to palpation along the medial joint line. He had an Ace wrap applied. The diagnosis was mild right knee sprain. A March 1991 VA treatment record states that the veteran had complaints of right knee pain and instability, but no locking. Examination revealed no effusion and full range of motion with crepitus and 1- to 2-plus Lachman's sign and one-plus drawer sign. No instability was noted. The impression was chronic right knee anterior cruciate ligament insufficiency and mild patellofemoral degenerative joint disease. The report of a VA hospital discharge summary relating to a period of hospitalization in March and April 1991 indicates that the veteran's right knee was not the reason for his hospitalization, but orthopedics was consulted because of his chronic right knee problems. The impression was degenerative joint disease and the treatment recommended was nonsteroidal anti-inflammatory drugs. It was opined that in the future a total knee replacement would be required. The report of a June 1992 VA orthopedic examination states that the veteran reported that his knee bothered him more when it was bumped, twisted, or had prolonged weight bearing and sitting in the same position. He also reported frequent locking sensations, but he did not currently take any medication for the knee. Examination of the knee showed a trace of effusion. Range of motion was accomplished from 0 to 135 degrees. There was a 2-centimeter, well-healed scar anteromedially. There was marked tenderness to palpation just posterior to the scar over the medial patellar retinaculum. There was no joint line tenderness and the ligaments were intact. X-rays of the knee revealed moderate tricompartmental degenerative joint disease with joint space narrowing and osteophytes. The assessment included moderate degenerative joint disease of the right knee with healed traumatic scar on the right knee. In reaching its decision, the Board has considered the complete history of the disability in question as well as the current clinical manifestations and the effect the disability may have on the earning capacity of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1993). The nature the original injury has been reviewed, and the functional impairment which can be attributed to pain or weakness has been taken into account. As noted, the veteran has reported a frequent locking sensation, but he does not take any medication for his knee. 38 C.F.R. § 4.40. Further, the Board finds that, in this case, the disability picture is not so exceptional or unusual so as to warrant an evaluation on an extraschedular basis. It has not been shown that the right knee disability has caused marked interference with employment or necessitated frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1) (1993). An evaluation greater than 20 percent for residuals of an injury to the knee is not warranted. While the veteran does have degenerative joint disease of the right knee, pain, and some effusion, he lacks only 5 degrees of flexion from having full range of motion, and does not have subluxation or lateral instability. The 20 percent currently assigned considers the pain reported by the veteran and, when the overall disability is viewed, no more than moderate impairment is indicated. A higher evaluation would require ankylosis, significant limitation of motion, or severe instability, none of which are shown. 38 C.F.R. §§ 4.7, Part 4, Codes 5256, 5257, 5260, 5261. The evidence is not so evenly balanced that there is doubt as to any material issue. 38 U.S.C.A. § 5107. II. Back Disability The threshold question to be answered in this case is whether the veteran has presented evidence of a well-grounded claim; that is, a claim which is plausible. If he has not presented a well- grounded claim, his appeal must fail and there is no duty to assist him further in the development of that claim because such additional development would be futile. 38 U.S.C.A. § 5107. As will be explained below, the Board finds that his claim is not well grounded with respect to service connection for a back disability on a secondary basis. As noted previously, the issue of whether new and material evidence has been presented to reopen a claim for service connection for a back disability on the basis of direct incurrence during active service has been referred to the RO for its consideration. The contention is that the veteran has developed a back disability which is proximately due to and the result of his service-connected right knee disability. It is asserted that, because of the veteran's favoring his right knee, he has injured his back. A December 1990 VA emergency treatment record reflects that the veteran was seen for back strain. During the June 1992 VA orthopedic examination, the veteran reported that he was having problems with his back and had injured it sometime in the early 1980's. When he was lifting something, he was trying to take the weight off of his knee and injured his back. The examiner, in his assessment, indicted mechanical low back pain, but stated that he did not see any clear relationship between the spine and the knee condition. None of the clinical evidence of record suggests that there is any relationship between the veteran's service-connected right knee disability, the extent and severity of which has already been discussed in this decision, and his current low back pathology. The only evidence of record that implicates a relationship consists of the veteran's own statements. In Espiritu v. Derwinski, 2 Vet.App. 492 (1992), the United States Court of Veterans Appeals held that lay persons were not competent to make medical diagnoses. Therefore, while the veteran could report symptoms, his opinion with respect to the cause of his back disability is not probative. Since the determinative issue in the veteran's appeal involves medical causation and medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible or the claim will fail as being not well grounded. Grottveit v. Brown, 5 Vet.App. 91 (1993). Since none of the medical evidence of record associates the veteran's back disability with his service-connected right knee disability, he has not met the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim is well grounded and there is no further duty to assist him in the development of that claim. Tirpak v. Derwinski, 2 Vet.App. 609 (1992). Since the claim is not well grounded, the Board does not have jurisdiction to adjudicate it and it must, accordingly, be dismissed. Boeck v. Brown, 6 Vet.App. 14 (1993). ORDER An increased rating for residuals of an injury to the right knee is denied. The claim for service connection for a back disability on a secondary basis is dismissed. WAYNE M. BRAEUER 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.