BVA9504363 
DOCKET NO.  93-11 718     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Waco, Texas

THE ISSUES

1.  Entitlement to an increased rating for residuals of a left
knee injury, currently evaluated as 10 percent disabling.

2.  Entitlement to service connection for degenerative arthritis
of the lumbar spine, with sciatica.

3.  Entitlement to service connection for residuals of a fracture
of the thoracic spine.

REPRESENTATION

Appellant represented by: Texas Veterans Commission

WITNESS AT HEARING ON APPEAL

Appellant
ATTORNEY FOR THE BOARD

K. Ehrman, Associate Counsel

INTRODUCTION

The veteran had active duty from September 1971 to December 1976.

The appeal comes before the Board of Veterans' Appeals (Board)
from a December 1989 rating decision of the Waco, Texas, Regional
Office (RO).  That determination confirmed and continued a
noncompensable evaluation for service-connected residuals of a
left knee injury.  A January 1991 RO determination denied claims
for entitlement to service connection for arthritis of the lumbar
spine, with sciatica, and residuals of a fracture of the thoracic
spine.  By rating decision of December 1991, the RO implemented
the decision of a hearing officer, and a 10 percent evaluation
was assigned for residuals of a left knee injury from November
1989.  The veteran continued the appeal.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran essentially contends that the RO erred in denying an
evaluation in excess of 10 percent for service-connected
residuals of a left knee injury, and in denying his claims for
entitlement to service connection for arthritis of the lumbar
spine, with sciatica, and entitlement to service-connection for
residuals of a fracture of the thoracic spine.  Specifically, the
veteran contends that his left knee disability includes pain,
stiffness, swelling, instability, recurrent left knee locking,
numbness of the left lower leg, and a limp.  He also claims that
his lumbar and thoracic back disabilities were incurred in 1982
as a result of injuries sustained in a fall after his left knee
gave out from under him.

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 claim
for entitlement to an evaluation in excess of 10 percent for
residuals of a left knee injury, and it is also the decision of
the Board that the Board is without jurisdiction as to the issues
of entitlement to service connection for arthritis of the lumbar
spine, with sciatica, and entitlement to service connection for
residuals of a fracture of the thoracic spine.

FINDINGS OF FACT

1.  All relevant evidence necessary for an equitable disposition
of the appellant's appeal has been obtained.

2.  Service-connected residuals of a left knee injury are
manifested by chondromalacia of the left knee with possible small
meniscus tear, limitation of motion, pain on resistive quadriceps
action under the patella, retropatellar tenderness and pain on
shifting of the patella laterally, mild tenderness at the lower
border of the left patella, with complaints of numbness just
below the left patella, and recurrent left knee swelling not
objectively demonstrated.

3.  Evidence has not been presented which raises a reasonable
possibility that degenerative arthritis of the lumbar spine, with
sciatica, or residuals of a fracture of the thoracic spine, are
related to service or service-connected disability.

4.  The left knee disability does not present an exceptional or
unusual disability picture, as would be manifested by such
related factors as marked interference with employment or
frequent periods of hospitalization, so as to render inapplicable
the regular schedular standards.

CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 10 percent for
residuals of a left knee injury have not been met.  38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. § 3.321(b), Part 4, and
Diagnostic Codes 5257, 5260, 5261 (1993).

2.  The veteran has not submitted well-grounded claims for
entitlement to service connection for degenerative arthritis of
the lumbar spine, with sciatica, and, residuals of a fracture of
the thoracic spine.  38 U.S.C.A. §§ 5107, 7105(d) (West 1991).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

With regard to the veteran's claim for entitlement to an increased
rating for residuals of a left knee disability, currently
evaluated as 10 percent disabling, the Board has found that this
claim is well grounded within the meaning of 38 U.S.C.A. § 5107
(West 1991); that is, this claim is plausible.  Murphy v.
Derwinski, 1 Vet. App. 78 (1990).  The Board is also satisfied
that all relevant facts have been properly developed with regard
to this claim, and neither the appellant, nor his representative
contends that records not already associated with his claims file
exist.  Accordingly, with regard to this claim, the Board is
satisfied that all relevant facts have been properly developed to
their full extent and that the Department of Veterans Affairs (VA)
has met its duty to assist, as mandated by 38 U.S.C.A. § 5107
(West 1991).

I.  Evaluation of Service-Connected Left Knee Disability.

The RO established service connection for residuals of a left
knee injury by a rating decision in March 1977, and a
noncompensable evaluation was assigned from December 1976.  The
noncompensable evaluation was thereafter confirmed and continued
until, by rating decision of December 1991, the RO implemented
the recommendation of a hearing officer and a 10 percent
evaluation was assigned from November 1989.

Disability evaluations are based upon the average impairment of
earning capacity as contemplated by a schedule for rating
disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (1993).  The
severity of the veteran's service-connected residuals of a left
knee injury may be ascertained for VA rating purposes by
application of 38 C.F.R. § 4.71a, Part 4, Diagnostic Codes 5257,
5260, and 5261 (1993), of the Schedule for Rating Disabilities
(Schedule).  Slight impairment of either knee, manifested by
recurrent subluxation or lateral instability, warrants a 10
percent evaluation, a 20 percent evaluation requires moderate
impairment, and a 30 percent evaluation is assigned for severe
impairment.  Under the provisions of Diagnostic Code 5260, if
flexion of the leg at the knee is limited to 45 degrees, a 10
percent evaluation is assigned, and if flexion of the leg at the
knee is limited to 30 degrees, a 20 percent evaluation is
assigned.  Under Diagnostic Code 5261, if extension of the leg is
limited to 10 degrees, a 10 percent evaluation is assigned, and
if extension of the leg at the knee is limited to 15 degrees, a
20 percent evaluation is assigned.  Additionally, ankylosis of
the knee in a favorable angle in full extension, or in slight
flexion between 0 degrees and 10 degrees, warrants a 30 percent
evaluation under Diagnostic Code 5256.

The veteran was most recently afforded a VA examination in
September 1991.  At that time, the veteran reported a history of
"on and off" left knee pain since a 1973 motor vehicle accident
while in service.  Lately, he reported experiencing daily left
knee pain, with continued swelling and radiating pain up into the
thigh and down in to the calf.  The veteran stated that he is
unable to drive a truck or move furniture, as is his occupation,
that he has particular difficulty with staircases, and that if he
runs more than a few steps his knee "freezes."  He reported
feeling paresthesia and numbness just below the left patella.
The examiner noted that both patellar jerks were 2 plus and
symmetric, and the left patellar jerk was more brisk.  Both knees
moved 135 degrees/0 degrees.  McMurray's sign was positive on the
left.  There was no effusion and no increase in skin temperature.
There was pain on resistive quadriceps action under the patella,
and retropatellar tenderness and pain on shifting of the patella
laterally, without subluxation or apprehension.  X-ray
examination was negative.  The diagnosis was chondromalacia, left
knee.  Additionally, the examiner noted that the veteran "may
have a small meniscus tear."

X-rays of the left knee, taken in conjunction with a May 1991 VA
examination, were normal inasmuch as they showed no bone, joint,
or soft tissue abnormality, and the fabella was present.  At that
time, the veteran complained of left knee weakness, give-way,
instability and pain.  In May 1991, thigh measurements were 60.5
cm. on the right and 59 cm. on the left at the same level above
the patella.  The right knee measured 41.5 cm. and the left knee
measured 40 cm. across the mid-patella.  Each calf measured 40
cm. at the same level below the patella.  The left knee exhibited
no effusion, the patella was not floating, and there was no
tenderness on palpation of the joint lines, except some mild
tenderness at the lower border of the patella.  Both internal and
external ligaments were intact, and the knee extended to 0
degrees, with flexion to 140 degrees.

Private treatment records, dated from June 1983 to January 1992,
provide findings consistent with the findings reported on the
aforementioned VA examinations.  On physical examinations in June
and October 1991, the diagnosis was femoral patellar dysfunction,
but with possible malingering.  Range of motion of the left knee
was normal, with some crepitus noted, and the examiner did not
restrict the veteran from working.  There was no effusion,
erythema, warmth or swelling.

VA treatment records dated from March 1987 to September 1992,
show continued complaints of left knee pain with assessments of
chronic left knee pain, possible lateral ligament strain, and
patellofemoral chondromalacia.  In June 1992 VA examiners noted
left knee tenderness with no swelling, deformity, local warmth,
erythema or effusion of the left knee.  There was no joint
instability.  Point tenderness was also observed at the insertion
of the lateral ligament, and the range of motion of the left knee
was painfully limited in the last 15 degrees of both flexion and
extension.  In September 1992, there was again no left knee give-
way, and no definite history of locking.  The veteran complained
of intermittent pain and swelling.  Additional X-rays of
September 1992 showed no significant changes of degenerative
joint disease.

When all the evidence is assembled, the VA is responsible for
determining whether the evidence supports the claim or is in
relative equipoise, with the veteran prevailing in either event,
or whether the fair preponderance of the evidence is against the
claim, in which case, the claim is denied.  38 U.S.C.A. § 5107
(West 1991); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).  The
objective clinical evidence of record, including the May and
September 1991 VA examination reports, and VA and private
treatment records, dated from June 1983 to September 1992, show
no left knee subluxation or lateral instability, no ankylosis,
and no pain and limitation of motion of the left knee greater
than that contemplated by the current 10 percent evaluation.
Repeated X-rays of the left knee have been negative for any
abnormality.  While some impairment of the left knee is
demonstrated, that impairment is not shown to warrant an
evaluation in excess of 10 percent.

In exceptional cases, where the schedular evaluations are found
to be inadequate, an extraschedular evaluation may be awarded
commensurate with the average earning capacity impairment due
exclusively to the service-connected disability.  38 C.F.R.
§ 3.321 (1993).  We do not believe that this case presents such
an exceptional or unusual disability picture, inasmuch as there
has been no demonstration that his service-connected left knee
disability results in such related factors as marked interference
with employment, or frequent periods of hospitalization, so as to
render impractical the application of the regular schedular
standards.  While the veteran has difficulty working in his
occupation as a mover and truck driver, both private and VA
treatment records provide more probative clinical findings.
Additionally, the Board finds that there is a fair preponderance
of the evidence against the claim, as set forth above, and,
therefore, reasonable doubt is not for application.

II.  Service Connection for Degenerative Arthritis of the Lumbar
Spine, with Sciatica, and Residuals of a Fracture of the Thoracic
Spine.

The threshold question that must be resolved with regard to every
claim is whether the appellant has presented evidence that each
claim is well-grounded.  38 U.S.C.A. § 5107(a) (West 1991).  This
statutory requirement of well-groundedness places upon a claimant
the burden of submitting evidence sufficient to justify a belief
by a fair and impartial individual that the claim is well-
grounded, that is, that the claim is plausible.  Murphy v.
Derwinski, 1 Vet. App. 78 (1990).  In that case, the United
States Court of Veterans Appeals (the Court) defined a plausible
claim as "one which is meritorious on its own or capable of
substantiation."  However, if such plausible claim is not
presented, the Board is under no duty to assist in any further
development of that claim, since such development would be
futile.  38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski,
1 Vet. App. 78 (1990).  In this case, the veteran has not met
this initial statutory requirement and the claims for entitlement
to service connection for degenerative arthritis of the lumbar
spine and service connection for residuals of a fracture of the
thoracic spine are dismissed as not well-grounded.

The veteran has not submitted claims that are meritorious on
their own or capable of substantiation; he has not supported his
claims for entitlement to service connection for arthritis of the
lumbar spine, with sciatica, and residuals of a fracture of the
thoracic spine, with any plausible, probative evidence linking
these disorders, with disability resulting from service or
service-connected disability.

The Court has held that a claim that is not well grounded must be
dismissed by the Board.  Recent Court precedent opinion
underlines this initial burden and states:

[a] veteran claiming entitlement to VA
benefits has the burden of submitting
evidence sufficient to justify a belief that
the claim is well grounded.  See 38 U.S.C.A.
§ 5107(a) (West 1991); see Tirpak v.
Derwinski, 2 Vet. App. 609, 610-11 (1992).
If a claim is not well grounded, the [Board]
does not have jurisdiction to adjudicate
that claim.  See Grottveit v. Brown, 5 Vet.
App. 91, 93 (1993).

Boeck v. Brown, 6 Vet. App. 14, 17 (1993).

The Court indicates that a well-grounded claim requires more than
the mere submission of an allegation, but, rather, some evidence;
"[a]lthough the claim need not be conclusive, the statute
provides that it must be accompanied by evidence."  Tirpak v.
Derwinski, 2 Vet. App. 609, 610 (1992).  (Emphasis in original).
In that decision, the Court explained that the VA "benefits
system requires more than just an allegation; a claimant must
also submit supporting evidence."  Id. at 611.  Similarly, the
VA's duty to assist is not a license for a "fishing expedition"
to determine if there might be some unspecified information which
could possibly support the claim.  Gobber v. Derwinski, 2 Vet.
App. 470, 472 (1992).  This initial burden has not been met with
regard to the veteran's service-connection claims.

The veteran has appealed the July 1991 rating decision that
denied his claim for entitlement to service connection for
arthritis of the lumbar spine, with sciatica, and service
connection for residuals of a fracture of the thoracic spine.  He
contends that his lumbar and thoracic back disabilities were
incurred in 1982 as a result of injuries sustained in a fall
after his left knee gave out from under him.  However, the
clinically objective evidence of record provide no plausible
basis of support for his contentions, and to the contrary,
indicates that plausible claims have not been received with
regard to these issues.

Service connection may be established for a disability resulting
from a personal injury suffered or disease contracted in the line
of duty, or for aggravation of a pre-existing injury or disease
in the line of duty.  38 U.S.C.A. §§ 1110, 5107 (West 1991).
Regulations also provide that service connection may be granted
for any disease diagnosed after discharge from service, when all
the evidence, including that pertinent to service, establishes
that the disease was incurred in service.  38 C.F.R. § 3.303
(1993).  Certain chronic deceases, including arthritis, becoming
manifest to a degree of 10 percent or more within one year of
separation from service will be presumed to have been incurred in
service, unless otherwise demonstrated by the evidence of record.
38 U.S.C.A. §§ 1101, 1112, 1113, 5107 (West 1991).

For the showing of a chronic disease in service there is required
a combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word "chronic."  When the
disease entity is established, there is no requirement for
evidentiary showing of continuity.  Continuity of symptomatology
is required only where the condition noted during service is not,
in fact, shown to be chronic, or where the diagnoses of
chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b)
(1993).

Additionally, service connection may be granted for disability
which is proximately due to or the result of a service-connected
disease or injury.  38 C.F.R. § 3.310 (1993).  However,
congenital or developmental defects, like mental deficiencies and
personality disorders, are not "diseases or injuries" within the
meaning of applicable statutes and regulations.  38 C.F.R.
§ 3.303(c) (1993).

Service medical records are negative for any treatment for, or
diagnosis of, arthritis of the lumbar spine or fracture of the
thoracic spine during service.  Service medical records show a
two day history of complaints of back pain in September 1975,
when the veteran gave no history of back injury.  Pain was noted
to increase with breathing.  The low back muscles were tense.  A
diagnosis of muscle strain was given.  In conjunction with a
November 1976 examination for separation from service, both the
report of medical examination and report of medical history are
silent as to any complaints of, treatment for, or diagnosis of
lumbar or thoracic back abnormalities at separation from service.
While the veteran reported a history of broken bones, he
specifically reported no arthritis, no bone, joint, or other
deformity, and no recurrent back pain.  As such, service medical
records do not provide a plausible basis for the veteran's
claims.

The veteran was afforded an initial post-service VA physical
examination in February 1977, conducted with regard to his claim
for service connection for a left knee disability, the report of
which is negative for any complaint of, treatment for, or
diagnosis of a back disorder of any kind, including degenerative
arthritis of the lumbar spine, sciatica, or thoracic spine
fracture.  Similarly, the veteran's claims for VA compensation of
December 1976 and March 1983 are silent as to any complaint of,
treatment for, or diagnosis of back disorders.  The inference can
be made that no such disability existed at that time.  Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).

Post service medical records indicate that the veteran received
treatment for a slip-and-fall accident in January 1982, many
years after his separation from service.  A VA medical
certificate at that time indicates that the veteran slipped "on
the ice" while going down steps at this home.  He fell against a
concrete edge with his right low back area.  The veteran reported
having severe pain in the right low back area in this location,
with occasionally pain into the right hip.  Most significantly,
the veteran at that time reported "no past history of back pain
except an apparent episode of back strain [in] 1978."  The
diagnosis was contusion of the right flank.  Although the veteran
contended in his July 1991 substantive appeal that he slipped on
the ice in 1982 after his knee gave-out from under him, both the
January 1982 medical certificate and the veteran's July 1991
sworn testimony, taken in conjunction with the instant claim,
indicate to the contrary.  The veteran's sworn testimony was that
on the morning of the 1982 accident, he fell "all of [a]
sudden...I do not know why--if my knee gave away or what."  As
such, the evidence of record provides no plausible basis for
finding that any injuries sustained in the January 1982 fall are
related to service-connected left knee injury residuals.

The Board notes the veteran's contentions, alone, are not
competent evidence to establish a medical link between his
service-connected left knee injury residuals and back injuries
sustained many years later.  The veteran's unsubstantiated
statements, alone, are not sufficient to establish a plausible
claim.  This is especially true when the lay statement is
directly contradicted by the medical records, as in the instant
case.  We therefore find that to the extent that the statement is
offered for reasons which require medical knowledge under the
Court's holding in Espiritu v. Derwinski, 2 Vet. App. 492 (1992),
the statement fails to raise a question of fact or law.
Treatment records do not provide a basis for finding a medical
link between post-service disorders of the lumbar and thoracic
spine, and service-connected left knee injury residuals, and, the
veteran's statement of medical opinion is not competent evidence,
under the holding of Grottveit v. Brown, 5 Vet.App. 91 (1993) for
that purpose.  In light of the service medical records, and post-
service treatment records to the contrary, the claims are not
plausible, and they are dismissed.

The veteran has also submitted private and VA treatment records
dated from January 1982 to September 1992 showing some continued
treatment for back pain, but no relation is made between back
pain and his prior service or service-connected disability.
Indeed, X-rays of 1982 have been interpreted as showing a minor
congenital abnormality in the form of 6 lumbar vertebrae, with a
defect in the pars or spondylolysis on the left of S1 or L6.  As
noted above, congenital deformities, are not "diseases or
injuries" within the meaning of applicable statutes and
regulations.  38 C.F.R. § 3.303(c) (1993).

In May 1985, the veteran reported a 3 day history of back pain
related to bending and lifting at work.  The diagnosis was
mechanical low back pain.  In March 1991 the veteran was seen
again with complaints of low back pain since a motor vehicle
accident the night before.  The examiner noted that the veteran
walked into the office with a severe antalgic gait barely able to
get in and out of the chair.  However, at the end of the visit,
the examiner noted that the veteran walked down the hallway,
perfectly normal with a reasonable pace, "without the slightest
indication of pain."

An October 1990 medical statement of P. D. Gerdes indicates
treatment for back pain, with decreased sensation in the left
lower leg, but no association is made to service or service-
connected disability.  A diagnosis of degenerative arthritis in
the L4-L5 area was made, with sciatica, and an old compression
fracture in the lower thoracic region was noted.  Additional
treatment records show treatment for other disorders, not related
to his claims, including right shoulder injuries, and
nephrolithotomy with surgical removal of a urinary stone, via
left flank incision.

No private or VA examiner has attributed the onset of back pain,
lumbar arthritis, or residuals of a thoracic fracture to service,
or within one year thereafter, or to service-connected
disability.  As such his current claims, as stated, are not
plausible.  We must accordingly find that his claims for
entitlement to service connection for arthritis of the lumbar
spine, with sciatica, and residuals of a fracture of the thoracic
spine, are not well grounded.  Therefore, the claims must be
dismissed, since no question of fact or law has been submitted
over which the Board has jurisdiction.

The Court has held that the VA may have a statutory obligation to
advise claimants of the evidence necessary to complete a well-
grounded claim, under 38 U.S.C.A. § 5103(a) (West 1991), even
prior to the time when the duty to assist would otherwise attach
under § 5107(a).  See, Robinette v. Brown, No. 93-985 (U.S. Vet.
App. Sept. 12, 1994), reconsideration granted in part (Oct. 21,
1994)(per curiam).  In this regard, the Board notes that the May
1991, January 1992, and June 1992 supplemental statements of the
case, advise the veteran that he had submitted no evidence of an
in-service diagnosis, of arthritis of the lumbar spine, or
fracture of the thoracic spine, that arthritis of the lumbar
spine was not shown within one year after such service, and that
the evidence dated since his separation from service, fails to
associate either back disorder to his prior service or to
service-connected disability.  The Board notes that the veteran
need only submit such competent evidence of a medical link
associating arthritis of the lumbar spine, with sciatica, or
fracture of the thoracic spine, with service or service-connected
disability, in order to establish well-grounded claims for
service connection.  Upon doing so, his claims will be evaluated
as new claims, since it is found on this appeal that the Board is
without jurisdiction as to the issues of entitlement to service
connection for arthritis of the lumbar spine, with sciatica, and
fracture of the thoracic spine.  The Board's determinations with
regard to these claims are not determinations on the merits of
the veteran's claim under Grottveit v. Brown, 5 Vet. App. 91, 93
(1993).

ORDER

The claim for entitlement to an evaluation in excess of 10
percent for residuals of a left knee injury is denied.

The claim for entitlement to service connection for degenerative
arthritis of the lumbar spine, and the claim for entitlement to
service connection for residuals of a fracture of the thoracic
spine, are dismissed.

          U. R. POWELL
          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.