BVA9504812 DOCKET NO. 93-12 167 ) 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 multiple joint arthritis as secondary to service-connected residuals of a fracture of the thoracic spine, T-12, with deformity, currently evaluated as 20 percent disabling. 2. Entitlement to an increased evaluation for residuals of a fracture of the thoracic spine, T-12, with deformity, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Ronald R. Bosch, Counsel INTRODUCTION The veteran served on active duty from July 1943 to June 1948 and from May 1951 to August 1953. This appeal arose from an October 1991 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Waco, Texas. The RO denied entitlement to an increased evaluation for residuals of a fracture of the thoracic spine, T- 12, with deformity. The RO denied entitlement to service connection for multiple joint arthritis when it issued a rating decision in June 1992. The case has been forwarded to the Board of Veterans' Appeals (Board) for appellate review. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that he developed multiple joint arthritis as the result of his service-connected residuals of a fracture of the thoracic spine. He argues that his thoracic spine residuals are more disabling than currently evaluated. 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 veteran has not submitted evidence of a well grounded claim for service connection for multiple joint arthritis as secondary to service-connected residuals of a fracture of the thoracic spine, T-12, with deformity; and that the preponderance of the evidence is against a grant of an increased evaluation for residuals of a fracture of the thoracic spine, T-12, with deformity. FINDINGS OF FACT 1. The claim for service connection for multiple joint arthritis as secondary to service-connected residuals of a fracture of the thoracic spine, T-12, with deformity is not supported by cognizable evidence showing that the claim is plausible or capable of substantiation. 2. Residuals of a fracture of the thoracic spine, T-12, with deformity are productive of not more than moderate or severe limitation of motion. CONCLUSIONS OF LAW 1. The claim for service connection for multiple joint arthritis as secondary to service-connected residuals of an injury of the thoracic spine, T-12, with deformity is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. An increased evaluation for residuals of a fracture of the thoracic spine, T-12, with deformity, is not warranted. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.71(a), Diagnostic Codes 5285-5291 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Entitlement to service connection for multiple joint arthritis as secondary to service-connected residuals of a fracture of the thoracic spine, T-12, with deformity. Section 5107 of Title 38, United States Code unequivocally places an initial burden upon the claimant to produce evidence that his claim is well grounded; that is, that his claim is plausible. Grivois v. Brown, 6 Vet.App. 136, 139 (1994); Grottveit v. Brown, 5 Vet.App. 91, 92 (1993). Because the veteran has failed to meet this burden, the Board finds that his claim for service connection for multiple joint arthritis as secondary to service- connected residuals of a fracture of the thoracic spine, T-12, with deformity is not well grounded, and should be dismissed. Service connection may be granted for any disability which is proximately due or the result of a disability for which service connection has been granted. 38 C.F.R. § 3.310(a). Where the determinative issue involves causation or a medical diagnosis, competent medical evidence to the effect that the claim is possible or plausible is required. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). The claimant does not meet this burden by merely presenting his lay opinion because he is not a medical health professional and does not constitute competent medical authority. Espiritu v. Derwinski, 2 Vet.App. 492 (1992). Consequently, his lay assertions cannot constitute cognizable evidence, and as cognizable evidence is necessary for a well grounded claim, Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992), the absence of cognizable evidence renders a veteran's claim not well grounded. A June 1983 VA orthopedic examination report shows the veteran was noted to have mild osteoarthritis of the low back and both knee joints. The veteran provided testimony at a hearing conducted at the RO in April 1992. He testified that he suffered from multiple joint pain which believed was reflective of arthritis. A July 1992 VA x-ray report shows mild osteoarthritis of the lumbar spine. At a November 1992 RO hearing the veteran testified that he had been having multiple joint difficulties which he believed were reflective of arthritis which had developed secondary to his service-connected residuals of a fracture of the thoracic spine. The veteran has submitted no cognizable evidence demonstrating that his post service reported multiple joint arthritis was caused by his service-connected residuals of a fracture of the thoracic spine. There is no opinion from a VA or non-VA medical health professional that associates the post-service multiple joint arthritis with the service connected fracture residuals of the thoracic spine. There is no competent evidence of record showing that the post service reported multiple joint arthritis is etiologically related to or was caused by the service-connected residuals of a fracture of the thoracic spine. The veteran has failed to present a well grounded claim, and his appeal as to this issue must be dismissed. II. Entitlement to an increased evaluation for residuals of a fracture of the thoracic spine, T-12, with deformity, currently evaluated as 20 percent disabling. Initially the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a), in that it is at least plausible that his thoracic spine fracture residuals are more disabling than currently evaluated. The Board is satisfied that all relevant facts have been properly developed and that no further assistance to the veteran is required in order to comply with 38 U.S.C.A. § 5107(a). In accordance with 38 C.F.R. §§ 4.1 and 4.2, 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 thoracic spine fracture. The Board has found nothing in the historical record which would lead to a conclusion that the current evidence of record is inadequate for rating purposes. The service medical records show that the veteran sustained an injury to his back as the result of an automobile accident which occurred in January 1946. The 12th dorsal vertebra was fractured. A January 1951 VA general medical examination report notes a 20 percent limitation of forward bending. There were no other abnormalities. An x-ray disclosed the upper surface of the 12 thoracic vertebra was compressed with anterior wedging of the vertebral body. The RO granted entitlement to service connection for moderate limitation of motion of the dorsal spine, residual of a fracture of the 12th dorsal vertebral body, with assignment of a 10 percent evaluation. A June 1983 VA orthopedic examination concluded in a relevant diagnosis of a history of a compression fracture of the 12th thoracic vertebral body in January 1946 with residual localized osteoarthritic changes involving the posterior articular facets. The RO assigned an increased evaluation of 20 percent for residuals of a fracture, T-12, with deformity, when it issued a rating decision in June 1983. A July 1988 VA neurological examination report notes an x-ray showed an old healed fracture of the 12th thoracic vertebral body with wedging and was less than 1/3 the height of the vertebral body. VA outpatient treatment reports dated in 1991 show the veteran has been receiving medication on a periodic basis. At an October 1991 VA orthopedic examination the veteran complained of rib pain, and upper back pain in the area of the 12 thoracic vertebral body. He also complained of generalized arthralgia. On examination the veteran was noted to demonstrate no deformity or paravertebral muscle spasm of the spine. The examiner noted he had limited lumbar movement. He flexed forward to 20 degrees and extended to 0 degrees. The appellant laterally bent his spine to about 10 degrees bilaterally. Straight leg raising was to 80 degrees when he was sitting with distraction bilaterally. In the supine position it was 20 degrees. The examiner noted that radiographs of the thoracic spine noted a compression fracture with anterior wedging anteriorly by about 50 percent. There were large anterior osteophytes or exostoses which extended anteriorly from the superior end plate of T-14 to the inferior end plate of T-11. There was a similar one from the inferior anterior edge of T-12 to the superior edge of L-1. There was narrowing of the T-11 - T-12 disc space with some calcification or ossification within the disc. There was also slight narrowing of the T-12 -L-1 disc. The diagnostic impression was residual deformity of T-12 from compression fracture with residual osteophyte formation and associated degenerative disc disease at T-11 - T-12, T-12 - L-1. At the April 1992 RO hearing the veteran testified that he took pain medication without significant results. He again testified at the RO in November 1992. The veteran's residuals of a fracture of the thoracic spine, T-12 with deformity is evaluated as 20 percent disabling under diagnostic codes 5285 and 5291 of the VA Schedule for Rating Disabilities. His 10 percent evaluation under diagnostic code 5285 is for demonstrable deformity of the 12th thoracic vertebral body. The other 10 percent evaluation is for moderate or severe limitation of motion of the thoracic spine under diagnostic code 5291. The next higher evaluation of 60 percent under diagnostic code 5285 requires residuals of a fracture of a vertebral body without cord involvement with abnormal mobility requiring a neck brace (jury mast). This is not shown by the evidence of record. The 10 percent evaluation under diagnostic code 5291 is the highest evaluation listed. A 20 percent evaluation may be assigned for favorable ankylosis of the thoracic spine under diagnostic code 5288. Ankylosis has been defined as "immobility and consolidation of a joint due to disease, injury..." Lewis v Derwinski 3 Vet.App. 259 (1992). The veteran has motion and therefore ankylosis is not present. The October 1991 VA orthopedic examination demonstrated no increase in the disabling manifestations of the veteran's thoracic spine fracture residuals. His complaints of pain are contemplated in his current 20 percent evaluation. Such pain has not been shown to be productive of functional impairment warranting a grant of an increased evaluation under 38 C.F.R. § 4.40. No question has been presented as to which of two or more evaluations would more properly classify the level of severity of his thoracic spine disability. 38 C.F.R. § 4.7. The thoracic spine disability has not rendered the veteran's disability picture unusual or exceptional in nature and has not been shown to markedly interfere with employment. It has not required frequent inpatient care as to render impractical the application of regular schedular standards, thereby precluding a grant of an increased evaluation on an extraschedular basis. 38 U.S.C.A. § 3.321(b)(1). The Board has evaluated all the medical evidence of record including the testimony presented at two RO hearings. The Board finds that no basis has been presented upon which to predicate a grant of an increased evaluation for residuals of a fracture of the thoracic spine, T-12, with deformity. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.40, 4.71(a), Diagnostic Codes 5285-5291. ORDER The claim for service connection for multiple joint arthritis as secondary to service-connected residuals of a fracture of the thoracic spine, T-12, with deformity is dismisse d. Entitlement to an increased evaluation for residuals of a fracture of the thoracic spine, T-12, with deformity is denied. BRUCE KANNEE 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.