BVA9505440 DOCKET NO. 92-17 969 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to an increased rating for right knee disability, currently rated as 10 percent disabling. 2. Entitlement to a compensable rating for left knee disability. 3. Entitlement to service connection for tinnitus. 4. Entitlement to service connection for hearing loss. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL Appellant and his cousin ATTORNEY FOR THE BOARD James L. March, Associate Counsel INTRODUCTION The veteran had active service from May 1987 to March 1989. This appeal comes to the Board of Veterans' Appeals (Board) from a September 1991 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. In August 1994, the Board remanded this case for further development, which was accomplished. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he sustained a hearing loss and tinnitus during service. He alleges that the hearing loss and tinnitus come and go. He maintains that the disability ratings assigned to his right and left knee disabilities should be higher. 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 preponderance of the evidence is against the claims of entitlement to an increased rating for right knee disability and a compensable rating for left knee disability. The Board also finds that the veteran's claims of entitlement to service connection for hearing loss and tinnitus are not well grounded. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The claims for service connection for hearing loss and tinnitus are not plausible. 3. The veteran's right knee disability is manifested by subjective complaints of pain, more than slight residual impairment is not shown. 4. The veteran's left knee disability is manifested by subjective complaints of pain. 5. No unusual or exceptional disability factors have been presented. CONCLUSIONS OF LAW 1. The claims of entitlement to service connection for hearing loss and tinnitus are not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. The criteria for an evaluation higher than 10 percent for right knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.10, Part 4 Diagnostic Code 5257 (1994). 3. The criteria for a compensable rating for left knee disability have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.10, Part 4 Diagnostic Code 5257 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased ratings--right and left knee disabilities As a preliminary matter, the Board finds that the veteran's claims for increased ratings for right and left knee disabilities are plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits well-grounded claims, VA must assist him in developing facts pertinent to those claims. 38 U.S.C.A. § 5107(a). The Board is satisfied that all available relevant evidence has been obtained regarding the claims, and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1, 4.2 (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 right and left knee disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, which would warrant an exposition of the remote clinical histories and findings pertaining to the disability at issue. In October 1989, the RO granted service connection for right and left knee disabilities. A 10 percent disability rating was assigned for the right knee disability, and a noncompensable rating was assigned for the left knee disability. The service medical records reveal that the veteran injured his knees in a fall; arthroscopic surgery was done on the right knee. At a VA examination, conducted in May 1989, the veteran complained of right knee pain; there was no pain noted in the left knee. The examination revealed a full range of motion, bilaterally, with no effusion or crepitus. All ligaments were stable. A second VA examination was conducted in August 1991. The veteran alleged that he had almost constant pain in both knees and that they tended to "give out." The examination revealed no effusion, medial ridging or popliteal masses. There was normal range of motion, bilaterally, and no instability. Patello- femoral crepitation on the right was 2-plus, and on the left was 3-plus. X-rays of the knees were within normal limits. The impression was status post cruciate ligament injury of the right knee, with surgical repair, and mild chondromalacia patellae. It was noted that the chondromalacia patellae was probably slowly progressive. In March 1992, a hearing was conducted at the RO. The veteran testified that both knees were painful, and that the right was usually worse than the left. He and his cousin indicated that the knees were unstable, and that the veteran was not able to do martial arts as he once did. The veteran alleged that the knees were swollen. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1994). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. The veteran's service-connected right and left knee disabilities have been rated as 10 percent and noncompensably disabling, respectively, under Diagnostic Code 5257. That code provides that slight impairment of either knee, including recurrent subluxation or lateral instability, warrants a 10 percent evaluation. A 20 percent evaluation requires moderate impairment, and a 30 percent evaluation requires severe impairment. Here, the medical evidence reveals a full range of motion and stability in both knees. The veteran's testimony of recurrent instability of the knees and his subjective complaints of bilateral knee pain are noted. However, clinical findings indicative of moderate residual impairment for the right knee and slight residual knee impairment for the left knee are not shown. Examination has disclosed full range of motion and ligamentous stability in both knees. Therefore, the criteria for a 20 percent evaluation for right knee disability and 10 percent for left knee disability have not been met. The Board has given due consideration to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they were raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). In particular, the Board finds that the evidence discussed above does not suggest that the veteran's service-connected disorders present such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The disorders in question have not recently required frequent hospitalization, nor have they caused marked interference with employment. II. Hearing loss and tinnitus Initially, one who submits a claim for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Veterans Appeals (Court) has further defined a well-grounded claim as a "plausible claim, one which is meritorious on its own or capable of substantiation." Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). In addition, in order for a claim to be considered plausible, and therefore well grounded, there must be evidence of both a current disability and evidence of relationship between that disability and an injury or disease incurred in service or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992); Cuevas v. Principi, 3 Vet.App. 542, 548 (1992). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Impaired hearing will be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Disability Due to Impaired Hearing, 59 Fed. Reg. 60,560 (1994) (to be codified at 38 C.F.R. § 3.385). Here, the veteran alleges that he incurred tinnitus and a hearing loss during service. He suggested that this could have been caused by radar from ships or by answering loud telephones. There is no evidence in the service medical records of treatment for or complaints of hearing loss or tinnitus. In addition there is no post-service medical evidence of hearing loss, and the only evidence of tinnitus is the subjective complaints of the veteran. The veteran's lay assertions that a hearing loss and tinnitus are attributable to noise exposure in service are not supported by any clinical data and, standing alone, are not of significant probative value on the issue of the etiology of the hearing loss, as he is not shown to have medical expertise in the fields of audiology or otology. See Espiritu v. Derwinski, 2 Vet.App. 492 (1992) and Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Without the requisite competent medical evidence suggesting the presence of hearing loss and tinnitus and a relationship between those alleged disabilities and an injury or disease incurred in service or some other manifestation of the disability during service, the veteran has not met his burden of submitting evidence that his claims of entitlement to service connection for hearing loss and tinnitus are well grounded. Grottveit, supra; Rabideau, supra. Although the Board has considered and denied this appeal on a ground different from that of the RO, that is, whether the veteran's claim is well grounded rather than whether he is entitled to prevail on the merits, the veteran has not been prejudiced by our decision. In assuming that the claim was well grounded, the RO accorded the veteran greater consideration than his claim warranted under the circumstances. Bernard v. Brown, 4 Vet.App. 384, 392-94 (1993). To remand this case to the RO for consideration of the issue of whether the appellant's claim is well grounded would be pointless, and in light of the law cited above, would not result in a determination favorable to the appellant. VA O.G.C. Prec. Op. 16-92, 57 Fed. Reg. 49,747 (1992). ORDER Entitlement to an evaluation higher than 10 percent for right knee disability is denied. Entitlement to a compensable evaluation for left knee disability is denied. Evidence of well-grounded claims not having been submitted, the claims for service connection for hearing loss and tinnitus are dismissed. ROBERT E. SULLIVAN 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.